The Oklahoma Bar Journal January 2024

deserves or ignoring it. The legal idiom for this concept comes from an old case, where it was noted that the judge could “separate the wheat from the chaff.” 9 The phrase comes from Matthew 3:12 in describing separating things that are of a high standard from things that are of low quality. This means the judge can determine the important evi dence and disregard the rest. There is no way to know for sure, but experienced judges should be able to do this successfully. However, judges are also humans, so the ear lier point about the limitations of human thought holds true here too. The final option is that the judge declares a mistrial. This is proper when there is no way that a fair trial can be conducted. The current trial is stricken, and the case is set for a new trial with a new trier of fact. 10 A mistrial, in law, is “a trial that has been terminated and declared void before the tribu nal can hand down a decision or render a verdict. The termination of a trial prematurely nullifies the preceding proceedings as if they had not taken place. Therefore, should another trial on the same charges, with the same defendants, be ordered, that trial would start from the beginning, with the pre vious testimony or other findings not necessarily relevant in the new court proceedings.” 11 The option of a mistrial is highly disfavored in jury trials and even less commonly declared in bench trials. In jury trials, significant time and resources are expended in getting a case to trial. The option of shutting everything down and starting all over again is not something most judges, and sometimes lawyers and/or parties, want. Judges go to great lengths to issue “curing instructions” instead

A common feeling among experienced trial lawyers is that it is a mistake to object in front of a jury. The jury, they believe, will think the lawyer is trying to hide something from them.

After making the motion to strike, the lawyer still has the obli gation to ensure that their client receives a fair trial. How can this be accomplished after improper evidence was heard by the trier of fact? How can one “unring the bell?” Our legal system has estab lished three options for the judge. In jury trials, the judge can issue a “curing instruction.” 8 These are orders to the jury to disregard the evidence they just heard. Judges usually allow the lawyers from both sides to pro pose the exact language, and then the judge gives the instructions to the jury. In theory, this works effectively. Juries obey the instruc tions; they put the evidence out of their minds and give it no consid eration. The problem is that juries are composed of human beings. Even with the best intentions, humans have a hard time ignoring evidence they have heard in reach ing their decisions, regardless of instructions to ignore it. In bench trials, the judge can simply disregard the violating evidence. The theory is that the judge has the knowledge and experience to evaluate evidence properly, giving it the weight it

CURING INSTRUCTIONS: ‘UNRINGING THE BELL’ What happens when improper evidence is presented and a timely objection is made, but the trier of fact heard the evidence before the ruling? For instance, a compound question is asked, and the witness answers while the objection is being made. The court has heard the answer from the witness. Another example is when the offering lawyer reveals the con tents of a document before offer ing it into evidence. The opposing lawyer never got a chance to object, and the court heard the contents. While improper, this often happens at trial. When it does, the objecting lawyer must protect the record. They should immediately make an oral motion to strike the offending evidence. The judge will then rule on the motion to strike. This “protects the record,” keeping the transcript accurate in the event of an appeal. Interestingly, even if the judge orders the evidence stricken, it remains in the transcript so that the appellate court can review it if that specific ruling is appealed. The appellate court is trusted to disregard the improper evidence.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

26 | JANUARY 2024

THE OKLAHOMA BAR JOURNAL