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.

8 thoughts on “The invisible “trend”: banned words

  1. S.cotus

    To be precise, the FRE 704 does permit expert to testify as to matters within their expertise, but not legal matters. So, while they can testify as to causality, any conclusion which includes a mental state (which would include any legal definition of a crime) is inadmissible.

    Rule 704. Opinion on Ultimate Issue

    (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

    (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone.

  2. Malum In Se

    I know this comment is unrelated, but I am back old friend. if you could do me a favor and make a small announcement to our fellow blogging community I would be much obliged.

  3. Ken

    I went on a mainstream predominantly feminist blog and tried to explain this from a defense lawyer’s perspective and was widely derided and, by some, accused of sexism and being part of rape culture.

    The reaction to this merely serves to illustrate that mainstream liberal =/= pro-defense.

  4. Western Justice

    Whatever a judge wants to do, let him do it. He’ll find some rule of evidence to hang his hat on. Just from a common sense point of view, doesn’t it make more sense that a judge should prohibit a lawyer from using that word unless a witness used that word? We have all been trained in our boot camp trainings for instance that, if a witness uses a word like “crashed” the car as opposed to “weaved into the ditch,” to latch on that word as that word is now in “evidence” when you refer to that witnesses’ testimony.

  5. SPO

    Judges kinda get to control their courtroom. If they don’t want a prosecutrix saying rape, then, so long as they allow her to convey her side of the story, I don’t see the harm.

  6. Jeffrey Deutsch


    I beg to differ. There is all the difference in the world between one side using conclusory words like “rape” and a supposedly neutral party like the judge doing so. The former is perfectly legitimate, the latter seriously problematic.

    Juries know full well that each side is trying to secure victory, not be neutral, and that it is precisely the jury’s job to decide which side is right.

    Sure, there are alternative ways of describing pretty much anything. The whole reason we have words like “rape” in the first place is that most of us find them to be much better and simpler ways of getting the point across than the alternative elocution, however articulate, which you suggested.

    Bottom line: Prosecutrixes should have every right to accuse the defendant of rape, not just “having sex without my consent”. Defense attorneys should have every right to accuse a witness – even a police witness – of lying, not just “presenting potentially misleading testimony”. And so forth.


    Jeff Deutsch


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