First or all, a jury is only supposed to rely on the official record in making up their minds. Also, regarding appeals, you can only appeal something you protest. So, if during a trial, the prosecutor says to a witness “Now, please describe how you saw the defendant brutally murder the victim with an icepick at 1:05 pm”, and you don’t object to that, you can’t bring it up on appeal.
I have limited experience, but after this is done the judge will explicitly instruct the jurors to leave the offending fact out of their deliberations, for whatever good that does. They probably leave that part out of TV and movies to save time.
True and in the only criminal case jury I was on people tried hard to follow the rule. If someone brought up as evidence a point made by a lawyer on summation someone was sure to say that it wasn’t evidence. If someone mentioned something from outside the trial the same thing happened.
However, private thoughts, hunches etc., etc. are not easily controlled and I believe lawyers have a saying, “You can’t unring a bell.” The evil of improper actions is that they happened in front of the jury.
There are other issues a lawyer will consider before making, or failing to make, a motion to strike. You are correct that the motion will strike from the record improper material. This means neither the jury nor the parties may rely on that evidence.
Strategically, this is important in a couple of ways. As David Simmons says, you can’t unring a bell, so sometimes you just want the trial to go on. Sometimes a lawyer will not make a motion to strike because he doesn’t want the jury to hear the improper evidence emphasized (as the judge and parties discuss whether to strike it). Sometimes the lawyer won’t move to strike because he doesn’t want to interrupt the flow of crazy coming from the witness (rumors coming out of a certain trial right now indicate that the defense permitted a key prosecution witness to run off at the mouth so that the jury could see how tenuous her grasp on reality purportedly is).
But sometimes you have to make a motion to strike, particularly when the evidence is foundational for another piece of evidence. For example, if you want to introduce evidence to show that there was a freak lightning storm that actually caused the accident, you must show when the accident occurred. So if the lawyer can get evidence about the precise time the accident occurred stricken from the record, then evidence about the freak lightening storm doesn’t come in. Sometimes trials can turn on strategy like this.
There’s probably more, but I’ll leave that for someone else.
I believe that also some of the time in a big trial, especially when the lawyers are specifically arguing about what’s presentable evidence and what isn’t, the jury won’t even be in the room. So making a move to strike will definitely keep them from finding out about it then (if they’re even permitted to learn any of what was discussed while they weren’t present.)
I think I remember this mostly from the infamous OJ trials, when people were commenting on how large a percentage of the trial the jury wasn’t in the courtroom.
Correct, with a clarification. Normally evidence is presented in front of the jury, so they would hear the improper evidence. The lawyer would then say: “Objection. Approach.” The judge would permit the lawyers to approach the bench where they could discuss the specfics of the objection without the jury hearing.
If the judge agrees with the objection, she says, “Sustained. The witness’s statement about the chill in the weather is stricken from the record and the jury is instructed to disregard it.”
So normally the jury would hear the evidence before it is stricken. In some limited circumstances (as when the lawyers are aware that the witness’s testimony may be stricken in its entirety), the judge may permit the witness to be examined first outside the presence of the jury. If the judge then determines that the witness’s testimony is admissible, the jury is called in and the witness testifies. (Where, to preserve the objection for appeal, another objection is made in front of the jury, which objection the judge overrules. Or the judge will, before the witness testifies, tell the objecting lawyer, “you can have a continuing objection to this line of questioning. No need to keep saying it.”)
It’s mostly Hollywood dramatics and makes good TV. One of the basic rules of evidence is that the opposition has access to it prior to court. Whether civil or criminal court, all evidence must be made available to the opposition so that a proper defense can be made. And any points as to whether the evidence is admissable is generally decided prior to the jury entering the courtroom. It would be highly unlikely to ever hear counsel make an objection to evidence in court. And the courtroom dramatics of evidence suddenly be presented in court, a staple of Perry Mason, will never happen in a US court. That is a violation of the rules of evidence. In most criminal courts, objections can only be made against court etiquitte and procedure, such a misleading questioning or leading a witness.
racer72, your experience has definitely not been mine. While evidence is certainly exchanged ahead of time, you don’t always know what witnesses will testify to in court (particularly if you took a crappy deposition and didn’t close the witness out), and objections happen with relative frequency. It’s been observed that they happen less with good lawyers, so maybe your opposing counsel has been better than the ones I’ve seen.
There’s one other thing: if on appeal it can be demonstrated that the jury was improperly swayed by “unrung bells,” then the accused did not receive a fair trial, and the conviction can be vacated. (That no doubt has a lot of caveats to it, but as a general principle, it’s accurate.) And certainly a fresh trial de novo is an improvement over a conviction.
Guess we were commenting on different things. My post concerned evidence used in court, you post appears to concern testimony, each are a separate parts of a courtroom hearing. If you read the last sentence of my post, I made a disclaimer about what could be considered objectable, I should have used the word testimony, it escaped me at the moment. I do agree with you.
Yes, the transcript will have the testimony in it, something like this:
Witness: And then out of nowhere the defendant yelled that he wasn’t going to be taken alive, not after he’d killed everyone who got in his way. I could tell by the crazy look in his eye that this man was not right in the head, and I know he does not go to church every Sunday!
Lawyer A: Objection, move to strike. Approach.
Judge: Yes. (Everyone walks up to the bench.)
Lawyer A: Beyond the scope/violates the pre-trial order/improper opinion (etc. – whatever the objection is).
Lawyer B: (makes some unconvincing argument)
Judge: Okay. (Everyone goes back to their tables.) Objection is sustained. The witness’s last statement is stricken from the record. Ladies and gentlemen of the jury, you are not to consider the last statement made by the witness as evidence.
So when the court looks back over the transcript, it can see the testimony given that was stricken. Documents are similar – even if the document is not admitted in evidence, it will be marked for identification, so the appellate court can look at it as well.
racer72, sorry, you’re right. We’ve been using “evidence” when we should have been distinguishing between documentary evidence and testimony. You do have to exchange your documents ahead of time, and generally fight them out before the jury is brought in, so there’s relatively little surprise there (outside impeachment).