- The Washington Times - Monday, June 23, 2008

COLUMN:

The nation’s district attorneys are complaining about what they say is a rising number of judges who forbid witnesses and their attorneys from uttering certain words during a trial, such as “rape,” “crime scene” and “victim.”

The words could mislead jurors into believing a defendant is guilty before the evidence proves it, according to the judges’ reasoning. As a result, the defendant would not get a fair trial.

Instead, a victim should be referred to as a “complaining witness,” according to lawyers who support less-condemning language. A “crime” could be an “incident” and a “homicide” could be a “fatality.”

Although inflammatory words frequently have been excluded as evidence for decades, the issue gained momentum in the past year after judges in Missouri and Nebraska banned use of the word “rape” during rape trials.

The National District Attorneys Association says limiting the use of common language runs the risk of miring jurors in legal jargon.

“If somebody was injured or aggrieved, they are a victim,” said David LaBahn, spokesman for the National District Attorneys Association. “It is properly identifying the parties.”

Mr. LaBahn is a former California prosecutor who said the state’s Supreme Court has been a leader in neutering the use of words during trials.

“It doesn’t assist in the clarity for the jurors,” Mr. LaBahn said. “If anything, it confuses them more.”

However, the National Association of Criminal Defense Lawyers says whether a rape or murder occurred is something for the jury to decide, not to have it forced on them through the use of suggestive words.

“If we’re disputing that a crime was committed, we’re going to file for a whole dictionary of words we don’t want the prosecutor to use,” said Jack King, public affairs director for the National Association of Criminal Defense Lawyers. “That is a fact that a jury has to find.”

State courts have made inflammatory words an issue in several recent cases.

In Wichita, Kan., a defense attorney succeeded in persuading a judge to ban the words “victim” and “crime scene” from a homicide trial.

In Chicago, a judge declared a mistrial after a prosecution witness used prohibited language.

A Lincoln, Neb., woman has an appeal pending before the U.S. Supreme Court on whether she could say “rape” during the trial of a man accused of raping her.

In other news …

The other-worldly style of the Blue Man Group’s musical performances might sell tickets in Las Vegas, but an appeals court in the District said recently it was irrelevant to whether the group’s stagehands can be represented by a union.

The U.S. Court of Appeals for the District of Columbia Circuit said the group’s management must negotiate a collective bargaining agreement with the stagehands.

Until the court’s ruling, management refused to bargain with the union, saying it was not a legitimate representative of the workers.

The Blue Man Group is noted for the bright blue grease paint complexion of the trio’s members, their bald heads, their muteness and their thumping rock ‘n’ roll performances.

The group’s attorneys mentioned the style and quality of their performances in court papers they filed, but the appeals court was unimpressed.

“We deny [Blue Man Group’s] motion that the court take judicial notice of several artistic reviews of the Blue Man Group show that aptly describe the unique and highly unusual experience of attending a Blue Man Group performance,” the court said in a footnote to its decision.

Judicial notice means a fact is so obvious it can be used as evidence in court without the need for witnesses or documents to prove it.

Instead, the court said the group’s management engaged in questionable labor practices. Above the Law runs on Mondays. Call Tom Ramstack at 202/636-3180 or e-mail tramstack@washingtontimes.com.

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