Tactical Ways to Offer Prejudicial Evidence In Court
In Bauder v. State, 921 S.W.2d 696, 698 (Tex. Crim. App. 1996), the Texas Court of Criminal Appeals observed:
Even when a prosecutor intentionally elicits testimony or produces other evidence before the jury which is excludable at the defendant's option, our law prefers that the trial continue.
Because tactical decisions to offer prejudicial evidence are a normal and, in most respects, acceptable part of the adversary process, it would be counterproductive to terminate the trial every time an objection is sustained.
Consequently, it is considered a sufficient response to most well-founded objections that the material be withdrawn from jury consideration, if necessary, and that jurors be admonished not to consider it during their deliberations. Bauder, 921 S.W.2d at 698
Bauder should not be read, however, as sanctioning the conduct of zealous advocates who skate close to the ragged edge of improperly prejudicing the jury.
Rather, the court's comments must be understood as expressing a strong preference for completing the trial, as long as the trial remains fair.
As the court commented elsewhere in Bauder: "only when it is apparent that an objectionable event at trial is so emotionally inflammatory that curative instructions are not likely to prevent the jury being unfairly prejudiced against the defendant may a motion for mistrial be granted." Id .