I wrote previously about the ban on the word "rape" in criminal proceedings. But it seems that defense attorneys are arguing more often for the banning of loaded words in jury trials.
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.
But that was just the tip of the iceberg, claim critics, who say courts telling witnesses what words they can and can't say is a much larger trend than they had realized. In addition to "rape," courts also have banned the terms "homicide," "drunk," "victim," "murderer," "killer" and "crime scene."
The argument is that using words like "rape," "victim," and "murder" prejudice the jury against the defendant. That's a fine argument as far as it goes, but it seems silly that one can't call a dead body the "victim of a murder" if evidence points to that, or if that is actually what the victim believes happened. Part of the argument made by prosecutors and witnesses is that such gag orders confine the way a witness is allowed to speak. That is, that gag orders are an infringement on the witness's right to tell his or her story the way he/she wants.
I've often thought that one of the real skills of the defense attorney is the ability to pull witness testimony apart, showing its flaws and biases as well as its strengths. Telling the family member of a murder victim that they can't describe the person as a victim seems to be going too far in favor of defendants. So far, the federal courts haven't ruled on this issue, but I wouldn't be surprised if it does so soon.
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