At trial, a motion to strike commonly arises when a witness volunteers inadmissible information in an otherwise proper answer, or when a witness gives a non-responsive narrative that goes beyond the scope of the question. The attorney moves to strike the offending testimony, and if the motion is granted, the judge instructs the jury to disregard the stricken material. While jurors are presumed to follow such instructions, the practical effectiveness of "unringing the bell" is debatable. In severe cases where the prejudice cannot be cured by instruction, the court may declare a mistrial. In the pleading context, motions to strike are disfavored and rarely granted unless the challenged material has no possible bearing on the litigation.
Attorney: "Your Honor, I move to strike the witness's last answer as non-responsive. I asked whether she saw the defendant, and she volunteered information about his prior arrests." Judge: "Granted. The jury will disregard the witness's last statement regarding prior arrests."
Attorney: "We move to strike paragraphs 14 through 18 of the complaint as scandalous and impertinent under Rule 12(f). These allegations concern the defendant's personal life and have no relevance to the breach of contract claim."
Attorney: "Objection, move to strike. The witness is testifying about the contents of a document that has not been admitted into evidence." Judge: "Sustained. The answer is stricken. Jury, disregard the witness's last statement."
Students sometimes conflate an objection with a motion to strike. An objection prevents inadmissible evidence from entering the record, while a motion to strike removes material that has already been presented. If inadmissible testimony slips in before an objection can be made, the remedy is a motion to strike.
510 U.S. 517 (1994)
Discussed Rule 12(f) standards, noting such motions are generally disfavored and should only be granted when matter has no possible relation to the controversy.
697 F.2d 880 (9th Cir. 1983)
Addressed motions to strike expert testimony, establishing courts may strike opinions lacking adequate foundation or reliable methodology.
618 F.3d 970 (9th Cir. 2010)
Clarified that Rule 12(f) motions cannot substitute for summary judgment to challenge legal sufficiency of claims.
| Motion to Strike | Objection |
|---|---|
| Made after evidence is in the record | Made before or as evidence is offered |
| Seeks removal of existing testimony | Seeks to prevent testimony from entering |
| Requires jury instruction to disregard | If sustained, jury never hears it |
| Used when answer is unresponsive | Used to challenge admissibility prospectively |
| Can be raised after conditional admission fails | Must be timely or is waived |
When is a motion to strike appropriate during trial?
When a witness provides an unresponsive answer, when testimony is given before an objection can be ruled upon, or when evidence is admitted conditionally but the condition is never fulfilled.
What is the difference between a Rule 12(f) motion and a trial motion to strike?
Rule 12(f) strikes insufficient defenses or scandalous matter from pleadings before trial. A trial motion to strike removes inadmissible testimony from the record after presentation.
What happens after a motion to strike is granted?
The stricken testimony is removed from the record and the jury is instructed to disregard it. It cannot be considered during deliberations or referenced in closing arguments.
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