An article of 16 June 2008 by Tresa Baldas in the National Law Journal, Courts Putting Hot-Button Words on Ice, reports that words such as rape and victim are being banned by judges because they prejudice defendants.
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.
The article contains many examples.
This relates largely to the Nebraska case reported in July 2007. From Slate:
Nebraska law offers judges broad discretion to ban evidence or language that present the danger of “unfair prejudice, confusion of the issues or misleading the jury.” And it’s not unheard-of for judges to keep certain words out of a courtroom. Words like victim have been increasingly kept out of trials, since they tend to imply that a crime was committed. And as Safi’s lawyer, Clarence Mock, explains, the word rape is just as loaded. “It’s a legal conclusion for a witness to say, ‘I was raped’ or ‘sexually assaulted.’ … That’s for a jury to decide.” His concern is that the word rape so inflames jurors that they decide a case emotionally and not rationally.
I think the judge may have gone too far in this particular case.
In the NLJ article, note in particular the last section on the appeal against the Nebraska decision:
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. …
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.).
At Language Log, Roger Shuy discusses the matter and adds that witnesses don’t often get to use their own words in any case:
“Using your own words” isn’t all that common in trials I’ve experienced. Among other things, you can’t introduce your own topics, you have to answer the opposing lawyer’s questions according to the form in which they are asked (usually yes/no questions, or worse, tag-questions), and you have to be ready to be interrupted at any time. Testifying requires a witness to learn a new set of communication skills, many of which can seem counterintuitive. Doing this can be daunting for anyone not trained in the special culture of the courtroom.
