Tuesday, June 24, 2008

Threat of wrongful convictions causes judges to keep inflammatory testimony out of the rape trials

Counsel who defend the falsely accused need to be aware of the positive trend in the courts of keeping words such as "rape" and "victim" and "crime scene" out of rape trials. The reason, some feel, is that judges are becoming sensitive to wrongful convictions. The accuser can relate the facts without resorting to loaded, inflammatory, prejudicial, accusatory and conclusory terms that feed juries the conclusion that the defendant is guilty.

Look at the excerpted article below. Note the bellyaching prosecutors who claim that this trend is turning the clock back 50 years. Oh, you mean back when men thought they owned women? Right. Heaven forbid that a rape accuser should not be permitted to do or say whatever she wants in front of the jury, no matter how inflammatory or prejudicial to the presumably innocent man, in order to send him to prison, possibly for decades.

I find the sarcastic tone of some of these comments downright frightening. Such as this one by James P.Fox: ". . . the poor defendant is presumed innocent and we're not going to give much of a concern to the victims of these crimes."

You're damn right, Mr. Fox. You ought to read the stories in this Web site if you want to understand why it's of paramount importance to protect the "poor" defendant, as you derisively call him. I could chronicle case after case where men no more guilty than you are, sir, had to fight for their lives to be kept out of prison because of a woman's malicious lie.

How dare you denigrate the victimization of innocent men by refusing to do everything in your power to give them a fair trial.

Here's an excerpt from the article:

Courts Putting Hot-Button Words on Ice
Judges are banning terms such as 'rape' and 'victim' as prejudicial to defendants

Tresa Baldas
The National Law Journal
June 16, 2008

Call it the age of the Loaded Word.

A steadily increasing number of courts across the United States are prohibiting witnesses and victims from uttering certain words in front of a jury, banning everything from the words "rape" to "victim" to "crime scene."

Prosecutors and victims' rights advocates nationwide claim the courts are going too far in trying to cleanse witness testimony, all to protect a defendant's right to a fair trial. Concerns and fears over language restrictions have been percolating ever since judges in Nebraska and Missouri last year banned the word "rape" during rape trials.
. . . .

[Joshua] Marquis, who is the district attorney in Clatsop County, Ore., said courts telling witnesses and victims how to tell their story insults them, as well as the intelligence of jurors.

"You have a woman who's been raped and she has to say that she had sexual intercourse with the man, rather than calling him her attacker?" Marquis said. "I think this is going 50 years back in our legal evolution."

Not quite, counter criminal defense lawyers, who argue that certain words like "victim" and "rape" and "murder" conflict with the presumption of innocence, and therefore, should be kept out of trial.

"I've had wise judges frequently order that prosecutors and witnesses not refer to certain individuals as 'victims' or locations as 'crime scenes.' Such orders are required by the presumption of innocence," said criminal defense lawyer Daniel E. Monnat of Monnat & Spurrier in Wichita, Kan.

Monnat convinced a judge to exclude the terms "victim" and "crime scene" in a pending homicide case. Kansas v. Floyd, No. 06CR17 (Stanton Co., Kan., Dist. Ct.).

Monnat said that words like "victim" and "crime scene" contradict the presumption of innocence by assuming a conclusion that a jury is supposed to arrive at on its own.

"It only makes sense. You don't want the witnesses and officers of law enforcement talking as if it was a foregone conclusion, almost drumming it into the jurors' minds that a crime was committed by virtue of the fact that there is a victim," Monnat said.

"I think that courts are more and more open to restricting terminology like this because of the number of wrongful convictions that have been demonstrated to have occurred in the U.S."

Attorneys with the Cook County Public Defender's office in Chicago have had similar luck with requests to bar witnesses from using certain words, including "victim," "rape" and "crime scene."

. . . .
Attorney Jack King, spokesman for the National Association of Criminal Defense Lawyers, defended the defense bar's efforts to ban certain words during trial. For example, he said, there are several instances where defense lawyers are justified in trying to bar the use of the word "rape." They include: if they are 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 confused about what really happened.

"Sometimes it's not ludicrous," King said, responding to criticisms of attempts to keep certain words, such as rape, out. "There are some things you can't say in the courtroom," he said. "You might have the right to say things on the courtroom steps but not in a courtroom while on trial. And I dispute any constitutional scholar that says the First Amendment trumps due process in the courtroom. It never has. It never will."

But not allowing a rape victim to say she or he was raped is "a travesty to our criminal justice system," countered James P. Fox, president of the National District Attorneys Association and district attorney in San Mateo County, Calif.

"Their testimony is censored in order to protect the presumption of innocence, and that is outrageous," Fox said. "It's an example of the pendulum swinging, I think, to the side of the defendant -- the poor defendant is presumed innocent and we're not going to give much of a concern to the victims of these crimes."

Fox added: "I'm sorry, but the presumption of innocence argument only lasts as long as there's no other evidence to the contrary."


Wendy J. Murphy of the New England School of Law, who is representing a Nebraska rape victim opposing the judge's barring of the word "rape," said the major battle facing prosecutors and victims now is fighting judges' censorship orders.

To date, she said, there has been no federal court ruling on the matter.

"Prosecutors are begging for federal court comment on this," Murphy said.Murphy tried when she appealed the Nebraska judge's decision to bar a rape victim from using the word rape. She lost the case, and is now appealing to the U.S. Supreme Court. Bowen v. Honorable Jeffre Cheuvront, No. 4:07CV3221 (D. Neb.).

For Murphy, it is all about preserving the victim's right to tell her story freely and candidly in court. Telling someone not to speak is one thing, she said. But telling witnesses and victims what to say "is the ultimate anti-American thing to do."

First Amendment lawyer Rex Heinke, a partner in the Los Angeles office of Akin Gump Strauss Hauer & Feld, wonders where all this is going. "It strikes me as a little odd that you can't use that term [rape]," he said. "Does that mean you can't use murder, robbery, breaking and entering?"He added: "It's pretty hard to prosecute a murder case without being able to say the word murder."