The invisible “trend”: banned words

Alternate title: It’s better to keep your mouth shut and let people think you’re stupid…

From CrimProf and Appellate Law, this story about a growing “trend” where judges are preventing witnesses from using words that are legal conclusions. Sound familiar? The springboard for this story is the Tory Bowen case (what I call the “banned word” trial), where a State judge precluded her use of the word “rape”, among others, to describe her ordeal and she sued in Federal court.

The story cites some sort of national trend – and that voice of prosecutorial reason Joshua Marquis – in making its point. But that’s all it does. Says there is a trend based on two cases and the questionable word of prosecutor. No stats, no data, no study, nothing.

I now state there is a national trend whereby blue manatees are growing to over 106 feet in width.

I swear.

“Law prof” and former prosecutor Wendy Murphy (the same one who made wild accusations during the Duke Lacrosse scandal) decides to jump in with some absurd quotes:

She said the practice is “absolutely” unconstitutional.

“There’s no law anywhere that allows courts to issue these kinds of orders against private citizens,” Murphy said. “That doesn’t mean judges aren’t doing it.”

Prosecutors may object, but rarely do they have the time and resources to stop a trial midstream to appeal, she said.

S.cotus at Appellate really destroys her; you should absolutely read his post. The nonsense is palpable from those few quotes.

Joshua Marquis is no better:

But in cases where the defendant’s version of events is pitted against that of the alleged victim, “words are really important,” Marquis said.

“To force a victim to say, ‘when the defendant and I had sexual intercourse’ is just absurd,” he said.

Really? How hard is it to say: “he had sex with me, but I did not consent. It was nonconsensual. I did not want to have sex with him. He forced me. He did it against my will.” More descriptive, isn’t it?

This has been my problem since the beginning of the “outrage” at this decision. There are other ways to describe the non-consensual act. I just did.

“It’s a topic that’s coming up more and more,” said Joshua Marquis, an Oregon prosecutor and a vice president of the National District Attorneys Association. “You’re moving away from what a criminal trial is really about.”

Unfortunate that the State has to prove that what occurred fits within a statutory definition of what the crime is.  Every wonder why the rules of evidence don’t permit opinions as to the ultimate fact? That’s for the jury to decide. Just as it’s up to them to decide whether the victim was “raped” or “sexually assaulted”.

Also, let’s not talk about “moving away from what a criminal trial is really about”. Or if you want, we can talk about how a criminal trial in a child sex case has become a rubber-stamp conviction based on the “increasing trend” of not permitting a defendant to confront his accuser in court. How’s that for a trend? A real trend.

And yes, the rights of the defendant take precedence over the “right” of the victim to use the word he/she prefers.

What’s important to note here is that this is not a case where identity is at issue. If the issue were identity, I don’t think such an order would have been granted. The issue in this case was consent. So the question of whether she was raped was squarely before the jury. If, on the other hand, the defense was that the rapist was not the defendant, then there wouldn’t be a question that she was raped.