On shows like Law & Order, attorneys routinely make statements they know will be stricken from the record. Is that done in real trials and if so, how can judges truly expect juries to “disregard” the statement?
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This doesn’t happen *nearly* as often as TV makes it out to be. Because in real world courtroom scenarios, if you spout off something you *know* is going to irrevocably taint the jury, opposing counsel is up out of their chair in a *second* demanding a mistrial. This is “malpractice time” in actual reality.
Often times people in Law or Police work are depicted doing horribly unprofessional things and getting away with it. Because if we saw people conducting themselves with professionalism and caution, where is the drama with that, just boring old reality.
It can happen in real trials but it’s rare. Psychologically there’s evidence that the jury doesn’t like rule breaking attorneys who fight with the judge. People respect judges a lot more than lawyers to begin with.
Also it’s not really a “fight.” The judge can hit lawyers doing it on purpose quite hard, both in the case and in ethics complaints. If the DA does it, serious odds of a mistrial. The judge can rule against them on other borderline evidence, which is almost unappealable. The judge can in extreme cases sanction a civil party so hard they can’t win.
The jury is supposed to decide whether the state (for criminal trials) has proven their case beyond reasonable doubt. That’s not the same thing as “do we, the jury, believe the defendant did the crime”. If the only convincing evidence is ruled inadmissible, then the jury is supposed to say “Okay, he totally did it, but there’s no proof except for the inadmissible stuff, so while we all think he did it, we’re still going to turn in a Not Guilty verdict”.
But that rarely works if the inadmissible evidence is damning enough, at which point the judge will declare a mistrial. And if the judge thinks the prosecuting attorney did it on purpose, there are sanctions available against them for that.
When I was a juror, any time there was ever anything remotely procedurally questionable, we got whisked out the door. There were no sotto voce huddles in front of the judge while he covered the mic with his hand.
Pretty much all that stuff (what counsel can / can’t say / ask) has been ruled on already.
A *huge* number of things on Law & Order are wrong, specifically for the purpose of drama.
Last-minute evidence isn’t a thing. Any evidence from either side needs to be provided to the other side, well in advance.
Same thing for last-minute witnesses. Same thing for surprise testimony. Every witness in a major case is going to have had a deposition in advance, where they’ve been asked mostly the same questions they’re going to be asked on the stand, and that deposition was already made available to the opposing side.
The entire idea that a case can turn on a surprise is anathema to the concept of justice, and the system is designed to eliminate surprise. Of course, surprise is a fundamental element of dramatic tension.
Same thing goes for every emotional confrontation. The lawyers aren’t even allowed to come close to the witness stand!
Sooooo kind of. Stating some wild shit that would taint the jury is a quick route to a mistrial and a malpractice suit. BUT, in a much smaller and MUCH more cautious way this is a tactic used sparingly to influence the jury but it’s certainly not a hallmark for any case
Hello. Long time attorney here. Your question has a few parts, and it doesn’t seem like anyone has actually answered it. I will try to answer in the most ELI5 form I can.
No, it is not typical for attorneys to intentionally make an improper comment to the jury. When it does happen, 99% of the time it is because the attorney misunderstood the law and did not realize it was improper. The other 1% of the time would be because the attorney believed it would somehow help his or her case. Doing that is unethical, and there are various repercussions that a judge can impose affecting the trial itself, the attorney himself or herself, or both. It isn’t worth the risk.
No, the comment is not stricken from the record. For purposes of appeal, the fact that the comment was said needs to be known. If the comment is not objected to, that forecloses most litigants from being able to complain about it later on appeal. But in the criminal context—and depending on the jurisdiction, the civil context—an appellate court might still consider an unobjected to improper comment under something called “the fundamental error standard.” I won’t get into what that is; the important thing to understand is that nothing is actually stricken from the record. Attorneys will sometimes say something and then say, “strike that.” But it doesn’t actually mean “take it out of the record,” it just means, “never mind.”
No, judges don’t really expect jurors to disregard comments. There are standards that are applied at the trial level to see if a mistrial is necessary in light of an improper comment. If the judge concludes it isn’t, usually the jury is instructed to disregard the comment. In a subsequent appeal, an appellate court can consider the issue again, examining what impact the improper comment had under a “harmless error standard.” I won’t go into that either, but the point is no one really believes the jury 100% disregarded the comment, the question is what to do about it.
I hope that answers your question. Let me know if you have any others.
A lot of people saying it is rare but I’ll point to a famous recent example. In the Amber Heard vs Johnny Depp case, Depps lawyer asked one of his ex-girlfriends a question that the lawyer knew would be objected to, following a glowing character reference in which she said Depp never did or said anything untoward she was asked: “you have never testified in any trial before, why did you agree to testify in this one?” Heards lawyer immediately objected and without the judge interfering Depps lawyer retracted the comment
The question already did its job, the jury were left to answer the question for themselves which is why it was asked. Instances like this are examples of lawyers saying things they know they shouldn’t to get the info to the jury anyway.
Trial lawyer. I’d be held in contempt if I asked a witness a question I knew was improper for the sole purpose of planting ideas in the jury’s head I couldn’t otherwise get in.
However, juries are amazingly good at disregarding what the judge tells them to disregard. I’ve debriefed many juries who tell me they disregarded everything they were told to disregard.
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