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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It can happen but it’s rare and quickly addressed.
I was working a murder trial, prior to the trial there is an opportunity to address issues. In this case, there was a mental health component, BUT the diagnosis was heavily dated (15 years ago as a teen the accused was assessed, but stopped prior to getting diagnosed.) The Crown wasn’t going to call evidence about Schizophrenia because they had a clear case of the accused killing because the family member he shared a home with was looking to sell, which would put the accused homeless, so he killed him to prevent the sale. Additionally, forensic evidence tied him to the scene, utterances in jail were captured of him saying “I killed my grandfather, I’d like to confess.” Then a recorded confession with details and explanations of what, how, why etc…
Since there was no diagnosis the defense couldn’t bring up schizophrenia. They called a forensic psychologist who worked at the prison, and was involved in the accused’s treatment for mental health. This man was not deemed an expert (as that required hoops defense could not afford) so he was allowed to testify ONLY about his notes and dealing with the accused when in prison based in his prison records.
So through the trial the defense asked questions of neighbours, family, etc… that their client was weird, people said he was off putting, he was strange but no one could say “schizophrenic”.
So the defense calls their forensic psychologist from the prison, not an expert, and asks about his treatment. Numerous times the judge intervened because questions were veering towards expert testimony like opinions. The good doctor was perfectly happy to provide full answers with lots of detail, which again drew admonished from the judge.
Example
Def: “Could you describe how he presented to you upon meeting for the first time?”
Dr. “Yes, he came to me after having been assessed by the intake nurse, she evaluates and reviews records if any inmate and had flagged him as requiring psychological assessment, she administered a 78 point evaluation and found he possessed significant indicators which caused her concern”
Crn: Objection! He’s speculating about the intake nurse.
J: Doctor, I have to ask you only testify to what you know from first hand experience.
Def: sorry, did the intake nurse express any concerns to you?
Dr. “Well she filed the report which sent him to me.”
Def “ok thank you, did you provide clinical therapy?”
Dr. “Yes, along with tlak counselling and evaluations I am essentially a field medic, getting prisoners to a place where they are fit to attend court. I can’t cure them of their ailments but I can assist in stabilizing them and managing their incarceration.”
Def “ok, and did that mean younhad involvement in the accused’s care?”
Dr. “Yes, I prescribed him medication, Gobbalekook and Blahblahblah, commonly used to treat schizophr-”
CRN: Objection!
J: I think now is a good time for a break, Jurors please return to your jury room and enjoy a 20 minute break, I know today has been very dense thank you for your patience.”
Jury leaves
Judge: Doctor you were instructed to answer only what was asked, and defense you knew where you were leading him. How do you propose we handle this.
Def: Well your honour he is simply testifying what treatments he provided if the jury interprets that to mean there’s mental health at play…”
CRN: He used the medication names, and said schizophrenia while providing opinion evidence despite not being deemed an expert! Even if the jury overlooks the utterance and can’t figure out he was just about to diagnose the accused as schizophrenic, anyone who knows what Blahblahblah is used for will determine the accused is schizophrenic!”
J: Dr this is what happens when you insist on being through and over answering questions. The lawyers have specific rules they need to follow.and agreements they made, their questions are pointed for a reason so as to stay within the lines. I know you know this because I know you testify at many trials, no more games. The genie is out of the bottle.”
So then 40 minutes of lawyers debating if simply telling the jury to ignore that part was enough, or of they had to be reminded this Doctor wasn’t qualified to give such an answer, or do we proceed or on the cross does rhe crown just ask “Did you officially diagnose the accused” and then he says no, how do we undo the harm?
It was decided we would remind the jury about rules of evidence and expert testimony and opinions, etc…
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