Comments on: The invisible “trend”: banned words

By: Jeffrey Deutsch

Jeffrey Deutsch — Sun, 15 Jun 2008 05:38:07 +0000

Hello,

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.

Cheers,

Jeff Deutsch

By: SPO

SPO — Fri, 13 Jun 2008 21:54:55 +0000

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.

By: Western Justice

Western Justice — Thu, 12 Jun 2008 21:19:04 +0000

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.

By: S.cotus

S.cotus — Thu, 12 Jun 2008 20:22:49 +0000

… and to think that all the feminists I know are public defenders and generally agree with me.

By: Gideon

Gideon — Thu, 12 Jun 2008 16:10:13 +0000

Was there a post on this that you responded to? Was this recent? Link?

By: Ken

Ken — Thu, 12 Jun 2008 16:06:28 +0000

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.

By: Malum In Se

Malum In Se — Thu, 12 Jun 2008 06:37:56 +0000

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.

By: S.cotus

S.cotus — Thu, 12 Jun 2008 03:24:08 +0000

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.