Objection. Move to strike

The transcript will, however, include the attorney’s request to “strike that.”

Almost always true, but…

Errors not preserved for appeal by objection are still appealable as “plain error.”

They are reviewed under a much less forgiving standard than an error properly perserved for appeal… but if an error is serious enough, it may still be heard.

Objections happen all the time at trials, especially criminal trials. If the lawyers anticipate a line of testimony or a topic that they know will be problematic, they can make what they call a motion* in limine*. These are made before trial, and out of the presence of the jury. That said, criminal trials complicate things. Here is an example, impeachment with prior convictions. A criminal defendant’s decision to testify can be determined by a number of factors, but one of the main ones is past convictions. If the defendant testifies, the prosecutor might try to impeach the defendant with prior convictions. The defense lawyer can file a motion in limine seeking to exclude evidence of the prior convictions. But if the judge denies the motion, the only way to preserve the issue for appeal is for the defendant to testify and be impeached over defense counsel’s objection.

The most common use of the motion to strike is the non-responsive answer, and this is a more psychological than legal cause for the motion. If the evidence is relevant, the other side can always bring it out on cross-examination or redirect. Nevertheless, it’s a bit of a slap in the face to the over-exuberant witness to have the judge strike volunteered testimony. Motions to strike tend not to come up much beyond this, because lawyers object to questions more frequently than their answers. If the issue requires a determination of the answer to the question, the jury can be excused and the offering party can *voir dire * the witness, exploring the testimony and making a record without prejudicing the jury. If the judge rules that a party may not introduce testimony, the offering party can make an offer of proof to preserve the issue for appeal.

The record always reflects the testimony, the motion, and the judge’s ruling, and for an important ruling. The party who loses the motion might appeal the judge’s decision to strike the testimony. If the testimony were actually removed from the record, it would be a very complicated procedure.

Speaking of appeals, the motion to strike and other evidentiary rulings are important on appeal. If an appeal involves sufficiency of the evidence (the prosecution did not present evidence sufficient to justify the conviction) the appellate court will not consider striken evidence unless the exclusion is appealed and the court agrees with the offering party that the evidence should not have been striken. Similarly, at the end of the prosecution’s case-in-chief, defense counsel may move for a directed acquittal (same grounds–prosecution has not made out a prima facie case). In opposing the motion, the prosecution may not rely on evidence that was striken.

**Bricker ** is right. Plain error is an exception to the usual rule that issues must be preserved for appeal.

If you are talking about a case where the defendant’s lawyer moves to strike testimony and the motion is granted, it is very rare for an appellate court to reverse based on such things. If it turns out that too many things are getting blurted out by witnesses, the defense may move for a mistrial, and appeal if the motion is denied. But generally, courts of appeal ignore the “unrung bell” theory because it is a traditional part of trial strategy. In criminal cases, the matter is more complicated because under some circumstances a retrial is barred because of double jeopardy.

If the defendant’s lawyer is unable to anticipate areas of likely prejudice and either object before the witness answers or file motions in limine, the defendant might appeal based on ineffective assistance of counsel, but the standards for upsetting a verdict based on ineffective assistance in trial strategy are very tough.