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I Move to Strike That From the Record!


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10 replies to this topic

#1 of 11 OFFLINE   Johnny Angell

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Posted July 23 2013 - 07:13 AM

We've all heard that phrase, at least on TV.  I have always wondered what that phrase really means?  When sustained, is the offending material actually removed from the transcript of the trial as if the words were never uttered?

 

Or, is a notation made in the record that this portion of the transcript, while recorded, was stricken and the jury instructed to ignore it?

 

The latter option makes more sense to me.  We all know a bell cannot be un-rung.  Once the jury hears something, they've heard it and it may effect their deliberations.

 

To actually remove it from the record means that someone reading the transcript, say for an appeal, will not get a full accounting of the trial.

 

Which is it?


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#2 of 11 OFFLINE   Timothy E

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Posted July 23 2013 - 07:30 AM

A court reporter takes down everything in the record, including motions to strike.  If the objection is sustained, the statements still remain in the transcript of the record but are not considered part of the record on appeal.  The appellate court reviewing the transcript generally will not take consideration of the stricken evidence, although it may if the scope of the appeal includes an assertion that the trial judge acted improperly in ruling on the objections.



#3 of 11 ONLINE   TravisR

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Posted July 23 2013 - 07:45 AM

Or, is a notation made in the record that this portion of the transcript, while recorded, was stricken and the jury instructed to ignore it?

 

The latter option makes more sense to me.  We all know a bell cannot be un-rung.  Once the jury hears something, they've heard it and it may effect their deliberations.

I'm no lawyer (and hence you probably shouldn't listen to my legal 'expertise') but my understanding is that the jury should act as if the stricken comments were never said and they should have no bearing on their thought process. That being said, I find it hard to believe that they don't sometimes have some influence on a jury.



#4 of 11 OFFLINE   Clinton McClure

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Posted July 23 2013 - 08:08 AM

Exactly, Travis. IMO, that's along the same lines as a lawyer saying something or asking a witness a question and when the other side objects, the lawyer withdraws their statement. The jury 'should' disregard that bit, but they can't unhear it and so it subconsciously becomes part of their thinking/reasoning process. Just my .02.

#5 of 11 OFFLINE   Charles Smith

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Posted July 23 2013 - 08:12 AM

I've never sat on a jury, but I never in my life thought there was any way in hell a jurist could "unhear" or totally disregard something, even with the very best of intentions.  It seems tantamount to denying evidence of your own senses.  

 

Maybe I'll find someday that it actually is possible to do this, responsibly, in a court situation, but in the meantime I remain a complete skeptic.



#6 of 11 OFFLINE   Colin Davidson

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Posted July 24 2013 - 06:27 AM

I work for the Federal court in Seattle in IT and am not an attorney or play one on TV.

 

I have from time to time sat in on trials and have the opportunity to talk with Judges, courtroom deputies and court reporters about the trial process. Generally the "objection - move to strike" comes up very very rarely (at least in Federal court) because the entire trial is basically hashed out between the parties long before it goes to the jury. There are numerous pre-trial conferences where the evidence, witness testimony and other details are worked out between the parties and the Judge. Generally in advance the Judge will rule on pre-trial motions about what is in and what is out. Attorneys know that if any evidence or testimony is out, any mention of it during trial can result in contempt rulings against the attorney and a possible mis-trial which would result in heavy sanctions against the party.

 

This is why it often takes years to get a case all the way through because the parties will not agree on anything and it is that time to get those details in order before it goes before the jury.



#7 of 11 OFFLINE   Stan

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Posted July 24 2013 - 06:51 AM

Or, is a notation made in the record that this portion of the transcript, while recorded, was stricken and the jury instructed to ignore it?

 

The latter option makes more sense to me.  We all know a bell cannot be un-rung.  Once the jury hears something, they've heard it and it may effect their deliberations.

 

I'm agree with your separate option, once you hear something, it doesn't just vanish from your mind, it's going to become a part of your decision.

 

Just a sneaky way for lawyers to say something they know they shouldn't, but it plants that seed in the juror's minds.


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#8 of 11 OFFLINE   Al.Anderson

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Posted July 24 2013 - 07:17 AM

This came up in the Travis Martin trial.  What I read was that it is actually stricken from the record that the jururs see.  So while they cannot "unhear" it, when they are in deliberations and ask for a transscript, they will not see that exchange. 



#9 of 11 OFFLINE   RobertR

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Posted July 24 2013 - 09:50 AM

I've never sat on a jury, but I never in my life thought there was any way in hell a jurist could "unhear" or totally disregard something, even with the very best of intentions.  It seems tantamount to denying evidence of your own senses.  

 

Maybe I'll find someday that it actually is possible to do this, responsibly, in a court situation, but in the meantime I remain a complete skeptic.

 

I have been on a jury, and once something is said, it is NOT "purged" from a person's memory regardless of the judge's ruling that it's inadmissable.



#10 of 11 OFFLINE   Aaron Silverman

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Posted July 25 2013 - 12:08 PM

I have been on a few juries, and there have been times where the judge instructed us to disregard something that was said. Usually it's not too earth-shattering, though. I imagine that if something truly and irreversibly prejudicial were to come out in court, a mistrial might be in order.


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#11 of 11 OFFLINE   Johnny Angell

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Posted July 28 2013 - 12:49 PM

A court reporter takes down everything in the record, including motions to strike.  If the objection is sustained, the statements still remain in the transcript of the record but are not considered part of the record on appeal.  The appellate court reviewing the transcript generally will not take consideration of the stricken evidence, although it may if the scope of the appeal includes an assertion that the trial judge acted improperly in ruling on the objections.

I would think that everything the jury heard and saw should be part of the appeals process.  100 years from now, reading the transcript should accurately relate what the jury saw and heard.  I don't understand doing less.

 

This came up in the Travis Martin trial.  What I read was that it is actually stricken from the record that the jururs see.  So while they cannot "unhear" it, when they are in deliberations and ask for a transscript, they will not see that exchange. 

This seems reasonable to me as long as the appeals courts see what was stricken.


Johnny
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But a family cat is not replaceable like a wornout coat or a set of tires. Each new kitten becomes its own cat, and none is repeated. I am four cats old, measuring out my life in friends that have succeeded but not replaced one another.--Irving Townsend





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