Some context. Suppose the prosecutor enters into evidence body camera footage from a police officer. On the tape, the suspect makes a lewd remark, and another officer offers a witty comeback. The jury laughs.

The defense objects, arguing the part from the lewd comment is not relevant, and the judge agrees, and strikes the offending material from the record, which is the lewd comment, and comeback.

The next day, the officer who made the comeback testifies, having been absent the first day. When asked to identify which officer he was on the tape, the officer repeats his witty comeback, not knowing that the jury is supposed to be forgetting that part.

What happens now?

Does the judge prod the questioning attorney/witness to phrase/answer the question in such a way to avoid the stricken material?

Does the judge reverse her/his earlier ruling, arguing that if a witness needs to refer to the event, then it is relevant?

Or does the judge do something else entirely?

1 Answer 1


There is no need to strike apparently irrelevant segments from video evidence or to instruct the jury to ignore them. It would be an extremely time-consuming task, as well as confusing to the jury, to segment the video evidence in terms of strict relevance. If there is relevance to the video as a whole, it will be played and considered in its entirety by the jury. As you have noted, the relevance of a statement may not become apparent until further context from live examination.

However, where the remark presents a serious risk that it would prejudice the jury:

the best way to balance and alleviate these risks is to give the jury all the information, but at the same time give a clear direction as to the limited use they are to make of such information. Rules which put blinders over the eyes of the trier of fact should be avoided except as a last resort. It is preferable to trust the good sense of the jury and to give the jury all relevant information, so long as it is accompanied by a clear instruction in law from the trial judge regarding the extent of its probative value.

(R. v. Corbett, [1988] 1 S.C.R. 670, para. 36)

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