I was watching a stand-up comedian on TV the other day who was
getting
some laughs out of a practice I see frequently on Cop shows like Law
&
Order. Lawyers on both sides ask the most outrageous questions and
then when the other side objects the lawyer airily exclaims
"withdrawn!" Sure, but there's no way to make the jury unhear him!
Apparently this sly game is played by both sides because nobody can
figure out a way to stop it.
So my question is, do these 'withdrawn' questions show up in the
court
records of the case? Does an appeal court find out about them?
Every word said is included in the transcript. If something is
stricken from the record, it is left in the record, with the order to
strike included also. The appeals court needs to see the original
words in order to decide whether they were properly ordered stricken.
If the appeals court decides that the order to strike was proper, then
the appeals court cannot base it's opinion on the stricken materials.
The words will be actually removed from the transcript only if a
transcript is being shown to the jury. That almost never happens.
Remember, that the "withdrawn" question is not evidence anyway.
Now about the trickery of asking a question and withdrawing it. When
a question is asked and the other side objects, the objection is
generally based something being improper or inadmissible about the
answer that would result if the witness were allowed to answer. The
objection is not based on anything being wrong with the question
itself. There are very few reasons the question itself should not be
asked. The judge can instruct the jury that the questions are not
evidence, and that the implications of the question are not to be
considered. If the judge doesn't believe that this admonition is
adequate, the judge can declare a mistrial. If an attorney repeatedly
asks things like, "When did you stop beating your children?, I
withdraw the question", the judge will sanction the attorney for
contempt. Sanction may range from fines jail time.
McGyver
