Excluding the Word victim from Jury Trials
by: Abassos • December 27, 2010 • no comments
With the increasing prominence and legislative success of the victims rights movement, the legal definition of the term "victim" has become separated from its lay definition. Every non-lawyer knows that a victim is a person who has been harmed by a crime. But the legal definition has become something more like "the complaining witness" or "the person who, under the state's theory of the case, has been harmed by a crime." More and more I see the term "victim" being thrown around in court as if it's a label for a participant in the process. Even defense attorneys have started to succumb to the linguistic shift.
This is a real problem where the question is whether a crime was committed in the first place. Imagine a case where Husband and Wife are going through a divorce and Wife accuses Husband of domestic violence. Husband says it didn't happen and that Wife is using the criminal accusation as a weapon to get what she wants in the divorce. Wife says Husband was furious about the divorce and that's what caused him to be violent.
The essential question in the Husband/Wife case is whether Wife is a victim. If she was abused then she's a victim. If she wasn't then she's . . . well, not a victim.
But that's the lay definition. Under the new legal definition, the prosecutor decides who the victim is. If the prosecutor is prosecuting Husband then Wife is the victim. Period. Article I, Section 42 of the Oregon Constitution says that a victim "means any person determined by the prosecuting attorney or the court to have suffered direct financial, psychological or physical harm as a result of a crime".
When the new definition is confined to legal discussions between lawyers and judges, it isn't game-changing. Jargon pervades every profession. The problem arises when the word "victim" is used in front of a jury whose members naturally assume that if the victim is a victim then the crime occurred and that issue no longer needs to be decided.
The most dangerous mistake defense attorneys make is to use the term themselves. Even if the difference in legal and lay definitions is explained, the jury will see it as an admission that the crime happened. Almost equally risky is to allow the judge to use the word to refer to the complainant. It gives the state's theory the imprimatur of the ultimate authority in the courtroom. Even allowing the DA to use the term begs the sort of vouching that would not be allowed in any other way. It allows the DA to say "I know this crime really happened and that this person is a victim" in a subtle and effective way.
Here are two documents that will help you preserve the presumption of innocence. The first is a motion to disallow use of the term "victim" written by Dan Hubner and I last summer that liberally utilizes the words and arguments of memos we found on the web. Like, for example, the motion filed in the Kobe Bryant case. There are two arguments. First, that use of the word "victim" violates the presumption of innocence. Second, that it allows the DA to express a personal belief in the credibility of the case and the complainant (ie vouching). The second is a brief recently written by Marc Brown at OPDS. I've excised the irrelevant issues and converted the PDF to a word document. You'll particularly want to look at his brief to integrate the most recent vouching arguments.
