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Similar to how, in football/soccer, players strategically go for fouls because they're effective. Is it common practice for an attorney to bring up inadmissable evidence/points that, even though they might be stricken from the record, will inevitably have an effect on the jury?

As a simple example, if there was illegally obtained evidence on the defendant, then it couldn't be officially admitted and discussed in the court. But if the prosecution brought it up, it would "poison" the minds of the jury, even if it was ordered to be stricken from the records.

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When faced with improper statements made in front of a jury, the judge has three options: provide a correcting instruction to the jury, to strike the jury and continue alone (in civil matters), or to declare a mistrial.

Mistrial would be the appropriate remedy if the effect of the statements is so improper and prejudicial that it cannot be corrected by the judge's instructions to the jury to ignore them. See e.g. R. v. Armstrong (1969), [1970] 1 C.C.C. 136 (N.S.C.A.). A witness made an improper reference to an accused's confession. The only effective remedy was a mistrial.

Whether this is the case is a matter of discretion left to the trial judge.

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Some foreseeable consequences for an attorney trying this tactic are:

  • annoying the judge,
  • being found in contempt of court, and
  • facing disciplinary action from the bar association,

none of which are very attractive. The more egregious and repeated the conduct, the more likely the consequences would escalate.

For example, the New York State Bar Association Rules of Professional Conduct say (Rule 3.3(f)(3) as of June 10, 2022, also enacted into Title 22, §1200, of the NY Code):

In appearing as a lawyer before a tribunal, a lawyer shall not [...] intentionally or habitually violate any established rule of procedure or of evidence

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  • I think the bigger risk is a mistrial.
    – bdb484
    Feb 21, 2023 at 18:55
  • Just to be clear, it is done, somewhat routinely in small amounts, by advanced trial lawyers, but it is a risky tactic that has the potential to backfire if the lawyer hasn't read the judge's reaction exactly right.
    – ohwilleke
    Feb 21, 2023 at 22:04

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