Attorney: Gag order prevents defense’s ‘bold, public strategy’ in Jennifer Dulos case
For anyone interested with the 'gag order appeal' process which will be heard on Thursday. Here is the language for the relevant sections from the CT Practices Manual (pages 44 and 45).
COMMENTARY: Many forms of improper influence upon a tribunal are proscribed by criminal law. Others are specified in the ABA Model Code of Judicial Conduct, with which an advocate should be familiar. A lawyer is required to avoid contributing to a violation of such provisions.
During a proceeding a lawyer may not communicate ex parte with persons serving in an official capacity in the proceed- ing, such as judges, masters or jurors, unless authorized to do so by law or court order.
A lawyer may on occasion want to communicate with a juror or prospective juror after the jury has been discharged. The lawyer may do so unless the communication is prohibited by law or a court order but must respect the desire of the juror not to talk with the lawyer. The lawyer may not engage in improper conduct during the communication.
The advocate’s function is to present evidence and argu- ment so that the cause may be decided according to law. Refraining from abusive or obstreperous conduct is a corollary of the advocate’s right to speak on behalf of litigants. A lawyer may stand firm against abuse by a judge but should avoid reciprocation; the judge’s default is no justification for similar dereliction by an advocate. An advocate can present the cause, protect the record for subsequent review and preserve professional integrity by patient firmness no less effectively than by belligerence or theatrics.
Rule 3.6. Trial Publicity
(a) A lawyer who is participating or has partici- pated in the investigation or litigation of a matter shall not make an extrajudicial statement that the lawyer knows or reasonably should know will be disseminated by means of public communication and will have a substantial likelihood of materially prejudicing an adjudicative proceeding in the matter.
(b) Notwithstanding subsection (a), a lawyer may make a statement that a reasonable lawyer would believe is required to protect a client from the substantial undue prejudicial effect of recent publicity not initiated by the lawyer or the lawyer’s client. A statement made pursuant to this subsec- tion shall be limited to such information as is nec- essary to mitigate the recent adverse publicity.
(c) No lawyer associated in a firm or govern- ment agency with a lawyer subject to subsection (a) shall make a statement prohibited by subsec- tion (a).
(P.B. 1978-1997, Rule 3.6.) (Amended June 24, 2002, to take effect Jan. 1, 2003; amended June 26, 2006, to take effect Jan. 1, 2007.)
COMMENTARY: (1) It is difficult to strike a balance between protecting the right to a fair trial and safeguarding the right of free expression. Preserving the right to a fair trial necessarily entails some curtailment of the information that may be dis- seminated about a party prior to trial, particularly where trial by jury is involved. If there were no such limits, the result would be the practical nullification of the protective effect of the rules of forensic decorum and the exclusionary rules of evidence. On the other hand, there are vital social interests served by the free dissemination of information about events having legal consequences and about legal proceedings them- selves. 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 signifi- cance in debate and deliberations over questions of public policy.
(2) Special rules of confidentiality may validly govern pro- ceedings in juvenile, domestic relations and mental disability proceedings, and perhaps other types of litigation. Rule 3.4 (3) requires compliance with such Rules.
(3) The Rule sets forth a basic general prohibition against a lawyer making statements that the lawyer knows or should know will have a substantial likelihood of materially prejudicing an adjudicative proceeding. 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 investiga- tion or litigation of a case, and their associates.
(4) Certain subjects would not ordinarily be considered to present a substantial likelihood of material prejudice, such as: (a) the claim, offense or defense involved and, except when
prohibited by law, the identity of the persons involved;
(b) information contained in a public record;
(c) that an investigation of the matter is in progress;
(d) the scheduling or result of any step in litigation;
(e) a request for assistance in obtaining evidence and infor-
mation necessary thereto;
(f) 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 to the public interest; and
(g) in a criminal case: in addition to subparagraphs (a) through (f):
(i) identity, residence, occupation and family status 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.
(5) There are, on the other hand, certain subjects which are more likely than not to have a material 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:
(a) 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;
(b) in a criminal case or 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;
(c) 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;
(d) any opinion as to the guilt or innocence of a defendant or suspect in a criminal case or proceeding that could result in incarceration;
(e) 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 a substantial risk of prejudicing an impartial trial; or
(f) the fact that a defendant has been charged with a crime, unless there is included therein a statement explaining that
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Copyrighted by the Secretary of the State of the State of Connecticut
RULES OF PROFESSIONAL CONDUCT Rule 3.8
the charge is merely an accusation and that the defendant is presumed innocent until and unless proven guilty.
(6) Another relevant factor in determining prejudice is the nature of the proceeding involved. Criminal jury trials will be most sensitive to extrajudicial speech. Civil trials may be less sensitive. Nonjury hearings and arbitration proceedings may be even less affected. The Rule will still place limitations on prejudical comments in these cases, but the likelihood of preju- dice may be different depending on the type of proceeding.
(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 less- ening any resulting adverse impact on the adjudicative pro- ceeding. Such responsive statements should be limited to contain only such information as is necessary to mitigate undue prejudice created by the statements made by others.
(8) See Rule 3.8 (5) for additional duties of prosecutors in connection with extrajudicial statements about criminal pro-
