![\"Focusing](\"https:\/\/getthedata.co.uk\/wp-content\/uploads\/2017\/04\/Victim-374x263.jpg\")
<\/p>\nIs it impermissible to use the term \u201cvictim\u201d in a criminal trial? On its surface, the question may appear silly \u2013 the trial has a victim [accuser] and defendant [accused]. Yet the issue arises periodically, and was highlighted in recent trials.<\/p>\n
First, who or what is a victim? According to Black\u2019s Law Dictionary, it is \u201ca person harmed by a crime, tort, or other wrong.\u201d Black’s Law Dictionary (11th ed. 2019).<\/p>\n
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Second, why is this an issue now? A tremendous amount of publicity surrounded the decision of the judge in the Kyle Rittenhouse to bar the prosecutor from referring to any of the persons shot by Rittenhouse as \u201cvictims;\u201d the prosecution was limited to using \u201ccomplaining witness\u201d or \u201cdecedent\u201d when referring to the three men. Additional attention was paid to this in the Derrick Chauvin trial, when the judge refused to bar the prosecutor from using the \u201cv\u201d word in describing Mr. Floyd, although use of the term was discouraged.<\/p>\n
One must first ask whether a single word can matter in juror decision-making. One study found that using the term \u201cvictim\u201d as opposed to \u201ccomplaining witness\u201d had a statistically significant effect on verdicts, an effect separately impacted by the gender of the harmed person. When a woman was alleged to have been punched, referring to her as \u201cvictim\u201d produced a guilty verdict 68.2% of the time whereas referring to her as \u201ccomplaining witness\u201d produced a guilty verdict only 61.9% of the time. However, when a male alleged the same injury, referring to him as a \u201cvictim\u201d produced a guilty verdict 54.6% of the time and 63.7% of the time when referred to as a \u201ccomplaining witness.\u201d Michael Conklin, Victim or Complaining Witness: The Difference Between Guilty and Not Guilty, 57 San Diego L. Rev. 423 (2020).<\/p>\n
In some trials, maybe this doesn\u2019t matter \u2013 there is no dispute that a person was harmed and the defense is that of mistaken identification, although even there the results of the above study may give one pause. But where there is a dispute as to whether any injury occurred or that the conduct by the accused was not criminal but instead justified, words indeed should make a difference.
\nAnd the law? One can go back over 150 years to People v. Williams, decided in 1860 and perhaps the earliest case to consider the appropriateness of using \u201cvictim.\u201d There, the California Supreme Court noted that \u201cWhen the deceased is referred to as \u2018a victim,\u2019 the impression is naturally created that some unlawful power or dominion had been exerted over his person.\u201d People v. Williams, 17 Cal. 142, 147 (1860). Furthermore, the court caution that trial courts \u201cshould not, directly or indirectly, assume the guilt of the accused, nor employ equivocal phrases which may leave such an impression.\u201d Id.<\/p>\n
This view\u2014that the court must exercise caution when using the term victim in order to maintain neutrality for the jury\u2014has been restated many times, but that concern does not translate into a ban or a guarantee of reversal on appeal. Courts have expressed particular concern if the trial judge uses that label and otherwise look to how pervasive the use was.<\/p>\n
In one case, error was found when this term was used by the Judge. The Court of Appeals in Texas found in State v. Talkington that the reference in the jury instructions \u201cto [the] complainant as the \u2018victim\u2019 when [the] issue was whether or not complainant consented to the sexual intercourse constituted reversible error.\u201d Talkington v. State, 682 S.W.2d 674 (Tex. App.–Eastland 1984). More pointedly, the court noted that if the jury were to determine that \u201cthe complainant consented to sexual intercourse, she was not the object of a crime, and she was not a \u2018victim.\u2019\u201d Id. at 675. However, if the reference to \u201cvictim\u201d in the jury instructions is merely a recitation of the charge against the defendant, courts have found this to be appropriate. \u201cThe use of the term \u2018victim\u2019 in jury instructions is not prejudicial to a defendant’s rights when, as is the case here, the instructions taken as a whole clarify the government’s burden of proving all elements of the crime.\u201d U.S. v. Washburn, 444 F.3d 1007, 1013 (8th Cir. 2006).<\/p>\n
Illustrative is State v. Nomura, where a Hawaiian man was convicted of assault and battery against his wife, who was referred to as a \u201cvictim\u201d during the trial. On appeal, Nomura challenged the use of \u201cvictim\u201d in the jury instructions. The court agreed in part, holding that \u201cthe reference to a complaining witness as \u2018the victim\u2019 in criminal jury instructions is inaccurate and misleading where the jury must yet determine from the evidence whether the complaining witness was the object of the offense\u2026\u201d State v. Nomura, 903 P.2d 718, 722 (Haw. App. 1995). Furthermore, the court noted that the word victim \u201cis conclusive in nature and connotes a predetermination that the person referred to had in fact been wronged.\u201d Id. at 721. Nonetheless, this was deemed harmless error because the use was infrequent and \u201cwould not have had a substantial influence upon the jury’s verdict\u201d Id. at 723.<\/p>\n
The bottom line is that, as with many evidentiary issues, it will be the trial judge\u2019s exercise of discretion that will determine whether and how much \u201cvictim\u201d is permitted. Particularly where the issue involves a justification defense, the parties and court must assess whether hearing the word \u201cvictim\u201d come from the mouth of the judge becomes an impermissible thumb on the scales of justice, and if the prosecutor\u2019s use of the term is tantamount to vouching.<\/p>\n
[Thanks to Temple University Beasley School of Law student Beth LaPiene for her exceptional research paper on this subject which, with her permission, provided the background for this article.]<\/p>\n","protected":false},"excerpt":{"rendered":"
Is it impermissible to use the term \u201cvictim\u201d in a criminal trial? On its surface, the question may appear silly \u2013 the trial has a victim [accuser] and defendant [accused]. Yet the issue arises periodically, and was highlighted in recent trials. First, who or what is a victim? According to Black\u2019s Law Dictionary, it is<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2,3,6,11],"tags":[],"coauthors":[330],"class_list":["post-3482","post","type-post","status-publish","format-standard","hentry","category-advocacy","category-advocacy-and-evidence-blog","category-criminal-law","category-trial-advocacy"],"yoast_head":"\n