Tulsa Attorney BlogWhat Is Evidentiary Harpoon?

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Video Transcribed:  My name is Brian L. Jackson. I’m a Tulsa lawyer working with the Wirth Law Office. Today, I want to talk to you about the evidentiary harpoon. What that basically is, is an attempt by a witness, usually like a professional law enforcement officer or another experienced professional witness, who, it’s a statement blurting out of evidence that was already deemed inadmissible and that will be objected to, but is blurted out in the presence of the jury with the idea of the jury’s heard it, and once they’ve heard it, they can’t unhear it. And even though the judge will strike it from the record and admonish the jury to disregard it, if the evidence is bad enough, it may be impossible.

wirth lawNow, the reason I talk about this is, this is another example of why you want to have a good lawyer on your side when you go to court because this is a tactic that gets used from time to time. I mean, it is a violation of a number of laws in terms of procedure and constitutional rights, but it does happen and it can happen to you unexpectedly.

And if you don’t understand the law on this, if you don’t understand the appropriate way to address a problem like that, it’s the kind of thing that can make the difference between having a successful outing in court and not.

I talk about this just as an example of why it’s really important if you were facing a contested matter, particularly in criminal court, but in any court, this kind of thing is one of the many threats out there that you can get tripped up by if you’re not aware of it going in the door.

I mean no disrespect to anyone’s intelligence when I say this, but going into court is a specialization, just the same as surgery is a specialization and you can be extremely bright. And I also think you probably wouldn’t attempt surgery on yourself.

Likewise, you can be extremely bright, if you’re not an experienced trial attorney who is familiar with this kind of tactics, you can still get hammered pretty hard in court. It’s not a reflection of your intelligence. It’s just a fact of life. If you’re not familiar with that specialization, you can get hammered. And this is one of those ways that that’s a problem.

So the evidentiary harpoon, the response would obviously do object. And then the attorney on that side would ask for an in-camera hearing as to the particulars of what was said and how bad the damage was, whether it was intentional or not, et cetera.

The relief the judge has available is to either admonish the jury, or if the judge feels it’s necessary, and this is what the defense would ask for is a mistrial. In other words, trial stops, you get a new jury and start all over again.

Because the point of the evidentiary harpoon is it’s based on this idea that you can’t unring the bell. Once the jury has heard something, they’ve heard it. And even if they’re told not to consider that in the evidence it could still unconsciously impact their opinion on the case. So it is a particularly dirty and underhanded trick, and it does get used.

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