Anyone encountered trial judges in criminal trials banning the use of certain words that describe the events? It's happening in other states:

http://www.slate.com/id/2168758/

Good thing, bad thing, doesn't matter?

By the way David, just like you, I prefer links to the long articles. I wonder if there is any consensus on this?

JAS

WTF?!? Why can't a witness use their own words? How is it going to be credible to a jury to force a witness to not use words they would ordinarily use, and then not tell the jury why the witness wasn't allowed to call it what it is? Unbelievable.

as stormy weathers once said when the court forbade his client from using a slang word for rectal sphincter, "Tell me the word and I will use it."

I was furious when I read the article. I feel so sorry for that victim. Oops, I mean complainant.

Wait. What? Isn't the finder of fact supposed to decide the credibility of testimony?

I've had a judge ban the use of the word "survivor" to describe a sexual assault victim because "it implies that she survived extreme violence." !!

i love how the professor advocates for some clamping down on words, but conceeds that there is no value-neutral word to replace rape. complainant may be less value-neutral than victim, but only by a slight degree, and it's not totally value-neutral as you can always ascribe some value to it. this highlights the huge problem with this tactic - it can never end. every word can be replaced with another word and that word's meaning can change over time and even acquire the very negative connontations sought to be avoided by the first word. even if we accept this idea that it's "unduly prejudicial" fixing the problem will destroy the entire system.

leave it to a frakkin' lawyer.

P.S. - and Casey v. State (215 S.W.3d 870) is the Texas case that says referring to the victim as a victim in the jury charge is not error and not a comment on the weight of the evidence.

My favorite quote from the article:
"Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed."

Funny, I thought that was my job, using words that imply a crime was committed !!

One of the most frustrating parts of Casey was the fact that the word victim was part of the statute at issue in the case. I wonder of the courts in these other states are taking it upon themselves to undo language passed by their legislatures.

I might understand why the judge would keep certain words out of the jury charge. If the judge refers to a person as the "victim" then maybe one could argue that implies that he thinks a crime occurred. But the witness? The witness is trying to tell the jury that she (or he) is a victim! That's not a legal conclusion, it's a fact question, and that's what the witnesses are supposed to be telling us.

I have often had defense lawyers move that I be prohibited from using words in argument like murderer, rapist, or what have you. My response has always been that, in argument, I am allowed to tell the jury what I believe the evidence has proven. If the evidence shows that the defendant is a murderer, then I should be allowed to say that he is one. If the evidence shows that he committed rape, then I should be allowed to say that he is, by definition, a rapist. Just like he should be allowed to call my witness a liar, if he thinks he proved that.

These words are only inflammatory because they mean what they mean. The concepts they are intended to convey are inflammatory. Are jurors so weak-minded that they would convict someone on insufficient evidence just because someone used strong language to descibe the insufficiently proven act?

I am constantly amazed at how the judiciary promotes the ideal of trial by jury as the greatest method of legal dispute resolution the world has ever known, while at the same time trying to convince us that the average jury is filled with ignorant, illogical, irrational gulls who shouldn't be trusted to decide a pie-eating contest. When will the courts start to give credit where credit is due and accept that the collective wisdom of most juries is probably just as good as the individual wisdom of most judges?

i'm sorry, but "gulls" is too inflammatory under rule 403. please use another word.

also, i object to "pie-eating" as i find such endeavors sickening. please choose another type of contest. beauty pageant, perhaps.

Rats. I figured if the jury would have to look it up to know what it meant that it wouldn't be objectionable.

And "beauty pageant" is demeaning to women. I'm offended at your suggested remedy to my offensiveness.

Surely the ACLU and similar assorted blogger types would be against this limitation on free speech. Wouldn't they?

and if witnesses cannot tesify to their "opinions" of what happened that have to do with the legal conclusions that the jury draws....can officers say that they believed a driver was intoxicated, since that is surely descriptive and an element that the jury will decide? The judge I go in front of suppresses my dwi arrests if the officers don't say those exact words....makes it a little difficult to prove your elements if you can't actually state they exist.

This is dangerous logic if we thought of all the testimony that wcould be forced into neutral terms--that don't describe what actually happened. Maybe the assault victim can't say "he hit me" but should say he "moved his fist through the air until it connected with my eye."

Reminds me of the changes our legislature made a few years ago when it traded "community supervision" for "probation." I seem to recall Rob and others offering a whole string of proposals for legal terms during the TDCAA legislative updates.

For the legislature to do make the changes was one thing but, like you all, I find the Nebraska practice bizarre and extremely troubling. For the sake of argument, even if we concede counsel could be limited in their choice of words, we should never restrict lay people unversed in the subtleties of our language. Forcing them to use other words, and especially those they would not ordinarily use, must spill over into how the trier of fact evaluates their credibility and demeanor. It would also chill their ability to describe events. How does that help reach the truth!

JAS

i would imagine listening to a defense attorney offer alternatives to some offensive words would be quite entertaining. "no your honor, dingaling sounds too innocent and penis sounds to clinical, we'd prever the witness use the terms like gerkin, little bishop, and whoopee stick."

indeed, how long does it get before the defense attorney starts taking the liberty of scripting the witness's testimony?

David, the only term that should be used is baloney pony

Throw in some spoonerisms for good measure!

JAS

This whole discussion has gotten *******. I think you are all a bunch of *******. ******** is ********, and I think we should ****** the ******* every chance we get.

[thread edited by Judicial Commission for Censorship of Inflammatory Legal Language]

that's f*****g hilarious.