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In Season 14 Epsiode 3 of Law and Order, SVU (great start, I know), the defendant's lawyer leads an aggressive, argumentative line of reasoning several times when questioning a witness. Immediately after stating the question, the lawyer withdraws, anticipating an objection. The lawyer is very clearly talking to the jury, and insinuating a point. Can lawyer really use cross-examination as a vehicle to put in an argument, completely orthogonal to the witness' testimony?

Here's the excerpt:

[lawyer, during cross-examination of victim] What else would you do for money? Lie about rape? - Sue my client?

[victim] No, I would never do that.

[lawyer] You wouldn't lie about sex for money?

[victim] No.

[lawyer] But you have lied about sex for money in the past.

[victim] I'm telling the truth now.

[lawyer] I see. (Towards jury) And how do you expect the jury to tell the difference? (Immediately following up) Withdrawn.

One scene later, the lawyer is doing a cross-examination with another witness, one who agreed to pay the victim, Jocelyn Paley, to claim to be the author of a certain book:

[lawyer] (Again, towards jury) What made Jocelyn Paley the right choice?

[witness] As I said, it was the contrast between her innocence and the subject matter.

[lawyer] Or was it because she's a good liar? Didn't you choose Jocelyn Paley because she is a convincing enough liar to sell 5 million copies of a book about a fetishistic world that she claims to know nothing about?

[DA] Ob-

[lawyer] (Interrupting) Withdrawn.

The goal seems very clearly to plant a seed of doubt about the victim's credibility in the jury's mind. "Withdrawing" the line of questioning, practically speaking, does nothing here. How is this allowed?

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It happens all of the time, even though it is mildly improper. Usually, the lawyer can get away with it until the judge sternly warns the lawyer not to try it again, in which case the lawyer risks being held in contempt of court.

This is riskier for a prosecutor (who risks this conduct causing a conviction to be overturned on appeal resulting in a new trial), than for a criminal defense attorney.

This is because an acquittal, if obtained by these methods, is still not subject to appeal. Indeed, for a criminal defense attorney, even if it results in a mistrial followed by a new trial (which can be allowed if the mistrial is caused by the conduct of the defense), the mistrial will often count as a win if the trial was going badly on the merits.

  • What do you mean by "an acquittal, if obtained by these methods"? How does one know by which method an acquittal was obtained? – VF1 Jul 26 '17 at 21:48
  • What I mean is that improper argument by a criminal defense attorney at trial is not a valid ground to set aside a jury verdict acquitting a defendant, even though it might be a valid grounds for appealing a conviction if the prosecutor engaged in the same conduct. – ohwilleke Jul 27 '17 at 2:43

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