Okla. Stat. tit. 5A , app 3-A R. 3.6
Okla. Stat. tit. 5A , app 3-A R. 3.6
Committee Comments
[1] Preserving the right to a fair trial necessarily entails some curtailment of the information that may be disseminated about a party prior to litigation in which incarceration may result or lay persons will serve as fact-finders. While this proposition applies in civil cases, it is particularly salient with respect to criminal prosecutions. If there were no such limits, the result would be practical nullification of the protective effect of the constitutionally-grounded presumption of innocence and the exclusionary rules of evidence. At the same time, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings themselves. The public has a right to know about threats to its safety and measures aimed at assuring its security. It also has a legitimate interest in the conduct of judicial proceedings, particularly in matters of general public concern. Furthermore, the subject matter of legal proceedings is often of direct significance in debate and deliberation over questions of public policy.
[2] Special rules of confidentiality may validly govern proceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Such rules may be adopted by a tribunal to be generally applicable, to apply to a specific class of litigation, or to govern a particular case, by way of special order. Rule 3.4(c) governs compliance with all such rules; however, a statement in violation of such a rule or order may constitute a violation of Rule 3.6(a), depending on the circumstances.
[3] Recognizing that the public value of informed commentary is great and the likelihood of prejudice to a proceeding by the commentary of a lawyer who is not involved in the proceeding is small, the rule applies only to lawyers who are, or who have been, involved in the investigation or litigation of a case, and their associates.
[4] Notwithstanding paragraph (a), many statements about a matter made by participating lawyers and their associates are unlikely to materially prejudice the fact-finding process in an adjudicative proceeding. While circumstances can result in an otherwise innocuous statement's having a materially prejudicial effect, accurate, factual statements of the following matters will not ordinarily violate the standard of Rule 3.6(a):
(1) the claim, offense or defense involved and, except when prohibited by law, the identity of the persons involved; (2) the information contained in a public record; (3) that an investigation of the matter is in progress; (4) the scheduling or result of any step in litigation; (5) a request for assistance in obtaining evidence and information necessary thereto; (6) a warning of danger concerning the behavior of a person involved, when there is reason to believe that there exists the likelihood of substantial harm to an individual or the public interest; and (7) in a criminal case, in addition to items (1) through (6): (i) the identity and occupation of the accused; (ii) if the accused has not been apprehended, information necessary to aid in apprehension of that person; (iii) the fact, time and place of arrest; and (iv) the identity of investigating and arresting officers or agencies and the length of the investigation. This list is illustrative, not exhaustive.
[5] There are, on the other hand, certain subjects which are more likely than others to have a materially prejudicial effect on a proceeding, particularly when they refer to a civil matter triable to a jury, a criminal matter, or any other proceeding that could result in incarceration. These subjects relate to:
(1) the character, credibility, reputation or criminal record of a party, suspect in a criminal investigation or witness, or the identity of a witness, or the expected testimony of a party or witness;
(2) in a criminal case or other proceeding that could result in incarceration, the possibility of a plea of guilty to the offense or the existence or contents of any confession, admission, or statement given by a defendant or suspect or that person's refusal or failure to make a statement;
(3) the performance or results of any examination or test or the refusal or failure of a person to submit to an examination or test, or the identity or nature of physical evidence expected to be presented;
(4) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(5) information that the lawyer knows or reasonably should know is likely to be inadmissible as evidence in a trial and that would, if disclosed, create an imminent and material risk of prejudicing an impartial trial; or
(6) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that the charge is merely an accusation and the defendant is presumed innocent until and unless proven guilty;
[6] The likelihood of prejudice due to a public statement is different depending on the type of proceeding and the timing of the statement. Statements which may be innocuous when not made in close proximity to an adjudicatory proceeding may be materially prejudicial if made on the eve or in the midst of the proceeding. Criminal jury trials in which laypersons serve as fact-finders and other proceedings that could result in incarceration are most sensitive to extra-judicial speech. Civil trials in which laypersons serve as fact-finder(s) may also be quite sensitive. Non- jury hearing and arbitration proceedings are far less prone to be affected by such speech. The rule places limitations on prejudicial comments only with respect to the most sensitive cases. However, regardless of the likelihood of public dissemination of a statement, regardless of the timing of the statement, regardless of the vulnerability of a proceeding to prejudice as a result of the dissemination of a particular statement, and regardless of whether a lawyer is involved in a proceeding or associated with a lawyer who is involved in it, a lawyer should aspire to refrain from making statements that pose a substantial likelihood of prejudicing the fairness of a proceeding or unjustifiably casting doubt on the fairness of the proceeding or the legal system in general. A lawyer should be especially mindful of the likelihood of such effects when the lawyer's statement is reasonably likely to be disseminated by means of public communication.
[7] Finally, extrajudicial statements that might otherwise raise a question under this Rule may be permissible when they are made in response to statements made publicly by another party, another party's lawyer, or third persons, where a reasonable lawyer would believe a public response is required in order to avoid prejudice to the lawyer's client. When prejudicial statements have been publicly made by others, responsive statements may have the salutary effect of lessening any resulting adverse impact on the adjudicative proceeding. Such responsive statements should be limited to contain only such information as is reasonably necessary to mitigate undue prejudice created by the statements made by others.
Oklahoma Modification
The Oklahoma Rule that went into effect on October 1, 1997, differs from ABA Model Rule 3.6 in effect on that date in the following respects:
The standard in the 1997 version of Rule 3.6(a), "will have an imminent and materially prejudicial effect on the fact-finding process," differs from the ABA Model Rules standard, "substantial likelihood of material prejudice," to emphasize that Oklahoma's standard approximates the "clear and present danger" test that is familiar to lawyers, and also to highlight the fact that the Rule is concerned with effects on the factfinding processes of tribunals rather than effects on public opinion.
The 1997 Oklahoma amendments restrict the applicability of Rule 3.6 to statements affecting adjudicatory proceedings "involving lay factfinders or the possibility of incarceration." This differs from the ABA Model Rule, which applies to statements concerning any adjudicative proceeding.
ABA Model Rule 3.6(b) contains a list of types of statements that lawyers are affirmatively allowed to make. A similar list of types of statements appears in the fourth paragraph of the Comment to Oklahoma's Rule 3.6, where the statements are described as "ordinarily" permissible. This emphasizes that the list establishes only a rebuttable presumption as to the permissibility of such statements. Unlike the ABA list of presumptively permissible statements, the Oklahoma Comment does not condone public statements about the residence and family status of a defendant in a criminal case.
The next to last paragraph of the Comment to Oklahoma's Rule 3.6 is somewhat more specific than is ABA Model Rule 3.6 in identifying some of the factors to be considered in determining whether a statement violates the standard of Rule 3.6(a). That same paragraph of the Comment also goes beyond the ABA Model Rule in encouraging lawyers to aspire to be responsible regarding their extrajudicial statements, even if they are not proscribed by Rule 3.6.
The fifth paragraph of the Comment to Oklahoma's Rule 3.6 contains a list of types of statements that are more likely than others" to violate the standard of Rule 3.6(a). Like the Comment to ABA Rule 3.6, this list refers to a statement of "information that the lawyer knows or should know is likely to be inadmissible" at trial. The ABA Comment states that such a statement is presumed to be violative of Rule 3.6 when it poses a "substantial risk of prejudicing an impartial trial, while the Oklahoma Comment states that such a statement is presumed to be violative only when it poses an "imminent and material risk of prejudicing an impartial trial." This change is to conform to the different standard employed in Oklahoma's Rule 3.6(a) as compared with ABA Rule 3.6(a).
The last sentence of the last paragraph of the Comment to Rule 3.6 adds the word "reasonable" to the Comment explaining the safe harbor" created by Rule 3.6(b) to emphasize that the right of reply is not unlimited.