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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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.
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