I’m assuming that this instruction from the presiding judge means that, legally, the members of the jury are under the obligation not to take into account what has just been said in their deliberations regarding the guiltiness or innocence of the accused.
That’s in law. But what happens in reality? Surely, members of the jury can’t help being influenced one way or the other by stricken-from-the-record answers given by witnesses.
In reality, the warning only draws attention to the fact that what was just said was “forbidden.” That makes it exciting and they pay attention to it even more.
Nevertheless, it’s something that must be said. It has to be striken from the court records. So, if the jury does manage to forget it during deliberation, there will be no reminder of it when the review the facts of the case.
I think you would hear a judge saying “the jury will disregard…” rarely in real life as opposed to in the movies or on TV. A good attorney for the opposition will object to the question before the witness can respond, and when a judge has to say something like that the situation is going to be close to a mistrial, something judges certainly do not like. One of the things lawyers learn quickly is “do not piss off the judge.”
A personal story: In trial advocacy class in law school I was acting as defense counsel in a mock criminal trial. During the prosecution’s opening statement, they referred to the evidence the defendant would introduce. I immediately objected, and the judge gave the mock jury an instruction that what the lawyers say is not evidence, and that the defendant had no obligation to introduce any evidence in his defense. Realizing quickly that one can not appeal on the basis of an objection sustained by the judge, I then moved for a mistrial on the basis that the jury had already been tainted by the prosecution’s statement. The judge naturally had to deny my motion, and I sat back secure in the knowedge that the other side committed reversible error in their opening statement.
This does assume, however, that the defense lawyer is astute enough to pick up on that. I wonder how many people are sitting in prison because their lawyers weren’t smart enough to at least go through the procedural motions.
Robin
But, theoretically, could a case be built either by the defense or the prosecution on a series of elements that they know beforehand would be found inadmissible by a judge but whose impact would be sufficient for the balance to tilt on one side instead of the other? (I’m not saying the whole case, but a more or less significant portion of it.) From your post,2nd Law, I’d say you think not, am I correct? Could this be grounds for a mistrial?
P.S.: Sorry about the ‘guiltiness’ in the OP…
I have been on juries several times and only once have I been instructed to disregard a statement. It was an increadibly boring case of Deuling Doctors in a civil suit.
What the case boiled down to was a woman was in an accident. A semi struck her car from behind and pushed it over 500 feet before the driver even noticed the accident and stopped. The sparks from her car scrapping the pavement finally clued him in.
A doctor made a determination that she sufferd an injury that prevented her from working ever again. This woman had fiberous masses around her spine that made it painful for her to walk or do anything. This doctor wasn’t just some quack, he was the head orthopedic surgeon for the Summa Hospitals in Akron, Ohio.
The defense counter that the woman was lying and just trying to get money and also implied that the hospital was incompetent and in on it. They countered with an MD, OD who DIDN’T RUN SO MUCH AS ONE PHYSICAL TEST. He did, in fact, conclude that the original doctor’s diagnosis was probably correct. He did, however run a psycological test (an MM, something, something) and concluded that there was a good chance that she had the type of personality could potentially scam an insurance company. The plaintiff responded with an MM-whatever expert who questioned the MD, OD’s reading fo the test and said he was reading to much into the results. She (the expert) would have the exact page ready to counter almost anything the defense came up with. At one point, the defense brought up a passage in a different (out of date, as it turns out-you have to use the version of the book that goes with the test’s version) version of the book. The lawyer said something (I don’t even remeber what) but it brought up an objection from the plaintiff’s attorney and the judge told us (reminded us actually) that what the lawyers said wasn’t evidence, only what the witness said was and told us to disregard the question.
I have some advice for the truck driver (or more specifically, the insurance company for the trucking firm), ditch that defense attorney. we sat through I don’t know how many exchanges that went something like this–
Lawyer-At what time did the plaintiff arive at the hospital?
Witness-A little after five PM.
Lawyer-It was more than a little after five wasn’t it?
Witness-I believe that it was quarter after five.
Lawyer-Don’t you know? Don’t you keep records at the hospital?
Witness-Yes, the time she arrived and the time she was formally admitted are both in the records.
Lawyer-It says she arrived at 5:17. That’s more than a little after five isn’t it. It’s almost a third of the way to six.
And so on. The defense had about zero case to begin with, but after three days of listening to their attorney, I think the jury was more that ready to hit them with a big judgement, which we did.
Presuming that the attorney is on his toes, which obviously isn’t something you can always do, the problem would be that the series wouldn’t be a series, i.e. the opposing counsel would object to each element in turn. If an attorney attempted to introduce inadmissable evidence in such a manner, there would be a good possibly of a mistrial, and conceivably sanctions against the attorney for the repeated attempts to introduce the improper evidence.
And as Jimpy said, statements by the attorneys are not evidence. Atorneys can introduce evidence by witnesses and documentation, but what attorneys say themselves isn’t evidence, but rather they are trying to interpret the evidence presented in such a way as to convince the jury to see things their way. Sometimes the facts are just so crappy for one side, as in Jimpy’s example, that the case should be settled before a jury has a chance to show one of the parties its error in going to trial.
Well, one of the things that was drilled into us in Criminal Procedure was that the defendant in a criminal case doesn’t have to put on any case at all for an acquittal, and that the prosecution can not comment on what the defense may or may not do in its opening statement. I dare say that any prosecutor wouldn’t make the mistake of commenting on the defendant’s case in his opening statement more than once, its the kind of mistake one learns from.
Dave
I realized that, but what I meant to say was that the lawyer could ask a witness or witnesses a series of questions which he/she knew would be inadmissible simply to lead the jury to a conclusion favourable to his/her client.
On a tangent, what about “Have you stopped beating your wife?” types of questions which the witness can only answer with a Yes or a No? I realize that this serves the purpose of the interrogator perfectly but, if my reputation were at stake, I would tend to insist on an elaboration (eg. “I’ve never beaten my wife in the first place”). It seems (at least from what I’ve seen on the small and the big screens) that you have no say whatsoever in the matter. True? Please answer Yes or No.
Your attorney should object to the form of the question and make the other attorney re-phrase it. If your attorney didn’t object, you could always just say “I’ve never beaten my wife.” If the attorney tells you to to answer “yes” or “no”, your attorney should be clued in enough to object at that point. Even if your attorney is still sitting there like an idiot, judges will often ask attorneys if they want to object or even tell the attorney to re-phrase.
I asked my father-in-law (a lawyer) this same question while he was out for Thanksgiving. He basically said that lawyers ask objectionable questions all the time just so the juries hear them. However, the judges are not stupid and if a lawyer is doing a bit too much of this the judge will often make a fool of them by reprimanding them in front of the jury.
Er… maybe reversible error, maybe not.
Since your motion for a mistrial was timely, you properly preserved the issue for appeal. But it will be handled by harmless error analysis - in other words, even if this is an error, was it so substantial as to deny the accused a fair trial?
There are some errors that are presumptively substantial - among them is the comment, by the prosecution, on the defendent’s failure to testify. But if they merely referred in passing to evidence, other than the defendent’s own testimony, which they expected the defense to present… it’s quite possibly harmless error. If the case against the defendent was otherwise strong, and that comment alone didn’t likely tip the scales for the jury… it probably wouldn’t be reversed on appeal. See Chapman v. California for a good discussion of harmless error.
Having dealt with a fair number of cases on appeal that had otherwise colorable issues procedurally defaulted by trial counsel… I heartily applaud the instinct demonstrated above. Make your record - even if you lose the appeal on the merits, it’s much better than losing it on procedural default.
Rick
Rick