Hattip to BLT for its link to Tresa Baldas article in The National Law Journal, "Courts Putting Hot-Button Words on Ice." The article reports on the success of the defense bar in convincing trial judges to ban prosecutors and witness from using certain words, like "victim" and "rape" at trial. According to the defense attorneys quoted in the article, when used at trial, words like "victim" and "rape", or even "crime scene" and "public defender" interfere with the criminal defendant's presumption of innocence.
What?! How?! Let us forget for one moment, the fact that the defendant is already present, at trial, with an attorney, and has been accused by the state of some sort of "bad act" (I can't call it a "crime", that's not allowed). Let's also forget for a second that twelve ordinary people have given up their daily routines and lives for the past week, so that during the empaneling process they could be asked questions concerning their opinions on "bad acts", questions about their personal prejudices, and maybe even questions on the death penalty (if we can even call it that... the words "death" and "penalty" might not even be allowed), and let us pretend for one moment that the a single use of the word "rape" - a legally defined act - can sufficiently prevent twelve rational people from presuming that a defendant is innocent until the prosecution proves its case. In a criminal justice system that has increasingly taken the rights afforded a criminal defendant out of context, this takes the defendant's constitutional right to be presumed innocent until proven guilty one step too far.
I thought the entire purpose of a criminal trial was to allow both parties, the prosecution and the defense, to present their sides of the story, in their own words, so that a jury could decide - based on the weight of the evidence, and the witness's demeanor - whose story the jury believed. I did not realize the point of the jury trial was to ask the victim of a rape to come up with a creative way of telling the jury exactly what she believed happened to her, and describe the facts leading up to the trial.
One of the defense attorneys quoted in the article argues there are several legitimate reasons to ban the use of the word rape. These include "claiming the act was consensual; they are claiming there was no rape at all; or they are claiming the alleged victim was under the influence of a drug, or mentally ill, and therefore are confused about what happened." And while the defense attorney, as an advocate, may be justified in making the argument, it is ridiculous to allow a defendant to claim that the victim is mentally ill, or was under the influence, and not allow the victim to tell her side of the story with the words "I believe I am the victim because he raped me."
In these "he said, she said" cases it is up to the jury to decide if they believe the prosecution's story, or the defendant's story. It is not the role of the trial judge to say that the defendant can no longer be presumed innocent because the words "rape," "victim," and "crime scene" can "import itself on the jury's conscience." In this day and age, when one can barely turn on the television without catching yet another rerun of Law and Order or CSI, it will take more than the word "victim" for a juror to forget he has been instructed to presume the defendant's innocence until the prosecution proves its case beyond a reasonable doubt.