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Tortmaster
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Use of the "R" Word in a Criminal Trial
« on: July 11, 2007, 10:02:54 PM »

USE OF THE "R" WORD IN A CRIMINAL TRIAL

Quote
Judge, high court reject motion in Safi trial
By staff and wire reports
Wednesday, Jul 11, 2007 - 07:51:12 pm CDT

The state Supreme Court and a district judge have rejected motions from a woman who objects to a judge’s ban on saying such words as “rape” and “victim” at the trial of the man she says raped her.

Judge Jeffre Cheuvront of Lancaster County District Court on Wednesday said Boston lawyer Wendy Murphy, who filed the motion Monday, was not licensed to practice law in Nebraska and he dismissed her court motion on behalf of a woman at the center of a sexual assault trial.

And without explanation Wednesday, the state Supreme Court rejected Murphy’s request for review of the judge’s order

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Cheuvront in [pretrial] orders banned the use of words like “rape,” “sexual assault kit,” and “assailant.” He has also ordered witnesses to sign papers showing their acknowledgment of the order.

http://www.journalstar.com/articles/2007/07/11/news/local/doc46951287748bf460315839.txt

Quote
But she won’t be able tell her story to jurors — at least not in a way that’s truthful to her, she says — because a judge’s order bars witnesses from using words like “rape” and “sexual assault” in the trial of Pamir Safi, who is accused of sexually assaulting Bowen. “In my mind, what happened to me was rape,” said Bowen, 24. “I want the freedom to be able to point (to Safi) in court and say, ‘That man raped me.’”

http://www.journalstar.com/articles/2007/06/17/news/local/doc46745fdc16768519275420.txt

     It seems that Wendy Murphy is jealously guarding use of the "R" word in criminal trials. Unfortunately for her, a Nebraska Judge believes that the word is too prejudicial in front of a jury. Personally, I believe the Judge is right. To me, it is like use of the word "insurance" in a fender-bender case. That word is not allowed because it might prejudice the jury against a defendant. Also, courts allow expert witnesses to have an opinion about their field of expertise, but use of the word "rape" goes beyond a mere opinion and states a legal conclusion.

     One big problem I have with Murphy's arguments is their obvious disingenuous qualities. She claims her client will be hamstrung in the criminal trial because she will have to use words like "sex" or "intercourse" instead of the word "rape." Well, unless Murphy's client's vocabulary is limited to a few hundred words, I think she can do better. For example:

"That MAN forced me to have intercourse [sobbing] while I was passed out. God knows, he forced his penis into me and I would never, ever agree to that!  That MAN [sobbing and pointing] took adavantage of me in the most vile, dehumanizing and evil way possible, and I can NEVER be the same!"

     Also, Murphy is blabbing about the case to local and national media in an apparent attempt to taint the jury pool. Very disingenuous indeed. I guess it is also possible that Murphy did not realize she was undoing the Judge's pretrial rulings with all the publicity. Perhaps she was only seeking the type of "brand recognition" that, for example, P.T. Barnum had with midgets and siamese twins.   

     As briefly mentioned above, I have less of a problem with an alleged victim using the "R" word in a criminal trial. The real damage is done by "expert" witnesses. They are allowed to give their opinions, but the word "rape" itself is a legal conclusion. No doctor or SANE can say for certain that any rape happened (unless they witnessed the ra ... forced sex). The jury needs to determine what occurred, and if a doctor says, "I believe this woman was raped," that doctor has delivered an ultimate conclusion. 

     I think we should actually take it a step farther and ask newspapers to use the word "sex" or "intercourse" when describing any alleged defendant facing a rape trial. Of course, we couldn't call it a "rape shield policy," because the word "rape" is in it. Also, there is already a media-sponsored rape shield policy, and it might get confusing. Therefore, I propose the "R-word shield policy." I expect The New York Times will get all over that suggestion.

     As a further aside, I wonder how many times the word "rape" appeared in context with the innocent Duke Lacrosse students? Did it prejudice them in the eyes of the community? Sorry to answer my own question, but a search using Yahoo provided the following: "1 - 10 of about 1,440,000 for rape duke lacrosse." 

     As a final aside, I wonder why the Nebraska Judge has not entered a pretrial gag order. It seems that his actions undertaken in pretrial rulings to protect the rights of the defendant have been undone by the ubiquitous, camera-starved Wendy Murphy. Floyd says,


     _O_  ... Use of the "R" word is discriminatory!
      ( )
      /  \
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"If anyone out there still believes David Evans, Reade Seligmann, or Collin Finnerty raped a black stripper on March 13, 2006, you’re willfully deaf and blind. And stupid." -- LaShawn Barber
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Re: Use of the "R" Word in a Criminal Trial
« Reply #1 on: July 12, 2007, 12:55:44 AM »

     I guess, as a corollary, we will need to get rid of the current media-sponsored "Rape Shield Policy." Oh, I don't mean throwing out the entire policy, but the media should not use the word "rape" in describing any policy. As a very wise poster on Liestoppers noted, the word creates a very emotional response. Moreover, use of the word "rape" contemplates a legal conclusion. In honor of Dennis Miller, and by way of humble suggestion only, might we get the media to refer to their policy in the future as the " 'Louvre of DNA' Shield Policy"?

     Maybe, then, in the future, innocent alleged, but falsely accused,  forced sexual assault defendants, when they open their newspapers or watch their tellies, will not have the same sort of reaction that the Knights who 'til recently said "ni" had when someone said it.

     Another analogy drawn on Liestoppers was to the orange-clad defendant who is brought into court in shackles. Pretty prejudicial stuff if done in the presence of the jury. By presenting the defendant in custody like that, the court is basically saying that he or she is guilty of the crime. A motion in limine is filed by the defense attorney to make sure the DA keeps that evidence, or any mention of it, out of the trial. That is because the evidence has no probative value, and it is highly prejudicial to the defendant. 

     One of my favorite counts in a motion in limine is asking that the State's witnesses be precluded from testifying that they believed the accuser was truthful. As if they were human polygraph machines! But it happens all the time, unless the motion in limine is filed before the trial. A defense attorney wants to keep this kind of thing out of a trial because (a) the police officer really doesn't know, and (b) the credibility of a witness is something for a jury to decide. 

     A defendant, properly held over for trial,  has the right to have a jury decide the issue of forced sexual contact, not the media, not the accuser, not the prosecutor and not Webster's New Collegiate Edition. Of course, if the case is in Durham, everyone better be watching over their shoulders. MOO! Floyd says:


    _O_  ... the "R" word is prejudicial!
     ( )
     / \       
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"If anyone out there still believes David Evans, Reade Seligmann, or Collin Finnerty raped a black stripper on March 13, 2006, you’re willfully deaf and blind. And stupid." -- LaShawn Barber
Sarah
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Re: Use of the "R" Word in a Criminal Trial
« Reply #2 on: July 12, 2007, 01:03:48 AM »

Interesting points TM. I have mixed feelings about this, I can appreciate that the word could be prejudicial, but also the jury needs to be aware exactly what type of case they are trying and what they are or are cot convicting the defendant of.

Amazing that Wendy Murphy did not realize she needed to be licenced in Nebraska.  I wonder whether the accuser hired her specifically, or whether she offered her services.

 
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Tortmaster
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Re: Use of the "R" Word in a Criminal Trial
« Reply #3 on: July 12, 2007, 02:04:34 AM »

Interesting points TM. I have mixed feelings about this, I can appreciate that the word could be prejudicial, but also the jury needs to be aware exactly what type of case they are trying and what they are or are cot convicting the defendant of.

Amazing that Wendy Murphy did not realize she needed to be licenced in Nebraska.  I wonder whether the accuser hired her specifically, or whether she offered her services.

Sarah, I think just about every state does NOT have a rape statute on the books. They have sexual assault statutes. In Illinois we have criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault, misdemeanor sexual battery, etc. "Rape" is almost a biblical term, with the wrathful God/Old Testament connotations. Visigoth, Roman and Trojan soldiers raped women, the sophisticated modern man or woman only sexually assaults. 

[Note: I always thought it was strange to call it "criminal" sexual assault. I thought that use of the word "assault" said enough. It certainly would never be confused with "moral" or "righteous" sexual assault].   

Nebraska, where Wendy shot off her mouth, apparently has sexual assault, first degree (or 2nd or 3rd degree) and sexual assault of a minor. Thus, calling it a "rape" in Nebraska, has no legal significance, only potential prejudicial effects, including visions of Visigoths and Trojans sacking the mall or local WalMart.   

As for Wendy not knowing she needed to be licensed in Nebraska, it appears that she knew, and she either failed to file the proper motion to practice in a timely manner in the local jurisdiction, or the Judge denied her motion, or she began "practicing law" in Nebraska before the Judge had ruled on her motion. D'oh!

In your last sentence, are you suggesting that Wendy Murphy might have engaged in a little barratry? Or, do you think she is just out seeking publicity like an even clumsier and less elegant version of Jack Kevorkian? Floyd says,


    _O_  ... that woman will be the death of me!
     ( )
     / \ 


P.S. In a showing of cowardly political correctness, I would note that it is my belief that anyone convicted of criminal sexual assault or worse should be given an appeal as of right, and, if the appeal is denied, that person should then be shot, then quartered, then shot again, repeating the process until only a goo remains. Metaphorically speaking, of course. MOO!

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"If anyone out there still believes David Evans, Reade Seligmann, or Collin Finnerty raped a black stripper on March 13, 2006, you’re willfully deaf and blind. And stupid." -- LaShawn Barber
Sarah
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Re: Use of the "R" Word in a Criminal Trial
« Reply #4 on: July 12, 2007, 03:01:40 AM »

I am no exactly accusing her of ambulance chasing, but Nebraska is quite away from Massachusetts, even for a valkyrie.  I find it odd that the accuser would hire a lawyer from a state half the country away, unless she had an agenda which is unlikely , so I am guessing that Wendy’s own agenda came into play .  Does she, perhaps, scour the country looking for cases which might further her campaign?.   
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Tortmaster
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Re: Use of the "R" Word in a Criminal Trial
« Reply #5 on: July 12, 2007, 03:14:15 AM »

I am no exactly accusing her of ambulance chasing, but Nebraska is quite away from Massachusetts, even for a valkyrie.  I find it odd that the accuser would hire a lawyer from a state half the country away, unless she had an agenda which is unlikely , so I am guessing that Wendy’s own agenda came into play .  Does she, perhaps, scour the country looking for cases which might further her campaign?.   

     I think there's little doubt about that. She is a Massachusetts lawyer, but she jumped all over the chance to talk about the Duke case in North Carolina, even offering her assistance through her weird writings. On a silly note, weren't the Valkyrie somewhat noble in the Norse mythology? I think Wendy Murphy as the "Rape Valkyrie" is too ... honorable sounding. How about we scratch "Valkyrie" and substitute "vulture"?

________________________


     Note that the " 'Louvre of DNA' Shield Policy" would coexist nicely with various constitutional and moral safeguards we as a civilization have long embraced, including the presumption of innocence, the right to be proved guilty beyond a reasonable doubt in a court of law, the right to be tried in a court of law -- not the court of public opinion, the interest in being free from defamation, etc. 

     It can even be woven into well-known aphorisms: "Better ten guilty men go free than one innocent man be punished," is transformed into: "Better ten guilty men go free of just rebuke than defame one innocent man."

     The new policy could even be said to comply with the "two wrongs don't make a right," basic morality equation. It does run slightly afoul of the "sticks and stones" quip. Of rourse, "rapist" is a tad harsher than "four eyes" or similar taunts usually associated with sticks and stones.  MOO. Floyd says:

   _O_   ... right now I need aphorisms like I need a hole in my head.*
    ( )
    / \   



* Paraphrased from Douglas Adams. 
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"If anyone out there still believes David Evans, Reade Seligmann, or Collin Finnerty raped a black stripper on March 13, 2006, you’re willfully deaf and blind. And stupid." -- LaShawn Barber
Sarah
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Re: Use of the "R" Word in a Criminal Trial
« Reply #6 on: July 12, 2007, 03:39:45 AM »

LOL!! I mentioned a valkyrie because of their ferocious reputations, and it evoked the image of  Wendy galloping towards Nebraska to the strains of Wagner.  However, you are correct they are rather disqualified by they good features and I agree that a vulture or buzzard might be more apt.

I see your point about the word, I guess Wendy's argument is that the accuser has the right to express what she feels happened to her, but, again, it is not the accuser who has "rights" when it comes to a fair trial.

 


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PB
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Re: Use of the "R" Word in a Criminal Trial
« Reply #7 on: July 12, 2007, 04:36:45 AM »

LOL!! I mentioned a valkyrie because of their ferocious reputations, and it evoked the image of  Wendy galloping towards Nebraska to the strains of Wagner.  However, you are correct they are rather disqualified by they good features and I agree that a vulture or buzzard might be more apt.

I see your point about the word, I guess Wendy's argument is that the accuser has the right to express what she feels happened to her, but, again, it is not the accuser who has "rights" when it comes to a fair trial.

Fundamental fairness jurisprudence, at least in-so-far as it was conceived by the Earl "Is it Fair?" Warren's court, was a "public-regarding" vision of fairness. Warren himself would have abhorred the notion that the a trial could be "fair" to the accused while unfair to everyone else.

I remember early on in this case Justice Steven remarking at a hearing that he wanted to assure that the process would be fair not only to the defendants but to the accuser as well. Rightly so.
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niffari glynn
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Re: Use of the "R" Word in a Criminal Trial
« Reply #8 on: July 12, 2007, 05:19:46 AM »

First, Wendy Murphy is a moron. I can't believe she filed a motion while not licensed to practice law in the state. Why couldn't the alleged victim find someone to fight the judge's order who was actually licensed?

As for the judge's decision, it's not unique. The judge in the Kobe Bryant trial proceedings did something like that as well. I don't really have a rpoblem with it although I understand why the alleged victim is mad about the ruling. But in the end, there will be absolutely no confusion for the jury. They'll know from opening statements that the trial is a sexual assault trial and if the evidence supports it, this man will go to jail most likely. If it creates a more playing field to eliminate charged terms from the trial, no problem.
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Ready4Freddy
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Re: Use of the "R" Word in a Criminal Trial
« Reply #9 on: July 12, 2007, 05:57:47 AM »

First, Wendy Murphy is a moron. I can't believe she filed a motion while not licensed to practice law in the state. Why couldn't the alleged victim find someone to fight the judge's order who was actually licensed?...If it creates a more playing field to eliminate charged terms from the trial, no problem.
The first jury (deadlocked @ 7-5 guilty) didn't appear to be confused as to the charges.  And the judge doesn't appear to be anti-accuser - he allowed testimony about 2 other similar alleged incidents involving the defendant (no charges filed in those).

Interestingly, the press has been silent re: the defendant's background.  His Nat'l Guard service & presumed citizenship aside, maybe he thought of himself as an avenging angel against what he considered to be promiscuous women.
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MarkRougemont
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Re: Use of the "R" Word in a Criminal Trial
« Reply #10 on: July 12, 2007, 06:02:56 AM »

  The judge made a stupid rule in my opinion. To take this further it could lead to not being able too use the word murder in a murder trial or kidnapped or robbery or whatever.  All the judge has to do is instruct the jury that use of the word does not imply guilt, that is what they are there to decide.  Does this also apply to reading the charges against the defendant?  If the defendant is charged with first degree rape, then there you go, the word is already on the table.  Just stupid.
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Sarah
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Re: Use of the "R" Word in a Criminal Trial
« Reply #11 on: July 12, 2007, 06:40:04 AM »

LOL!! I mentioned a valkyrie because of their ferocious reputations, and it evoked the image of  Wendy galloping towards Nebraska to the strains of Wagner.  However, you are correct they are rather disqualified by they good features and I agree that a vulture or buzzard might be more apt.

I see your point about the word, I guess Wendy's argument is that the accuser has the right to express what she feels happened to her, but, again, it is not the accuser who has "rights" when it comes to a fair trial.

Fundamental fairness jurisprudence, at least in-so-far as it was conceived by the Earl "Is it Fair?" Warren's court, was a "public-regarding" vision of fairness. Warren himself would have abhorred the notion that the a trial could be "fair" to the accused while unfair to everyone else.

I remember early on in this case Justice Steven remarking at a hearing that he wanted to assure that the process would be fair not only to the defendants but to the accuser as well. Rightly so.

I think you are slightly misinterpreting Earl Warren’s stance, given his position on civil rights, he would have been keenly aware of the overriding need to protect the rights of the accused.

I note Judge Stevens’ aspiration, and of course any court will seek to ensure that it’s processes are fair to all. However, obviously where there is a conflict between being fair to the accused and being fair to anyone else, the accused rights have the higher priority. Rightly so.

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Epublius
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Re: Use of the "R" Word in a Criminal Trial
« Reply #12 on: July 12, 2007, 06:46:26 AM »

 The judge made a stupid rule in my opinion. To take this further it could lead to not being able too use the word murder in a murder trial or kidnapped or robbery or whatever.  All the judge has to do is instruct the jury that use of the word does not imply guilt, that is what they are there to decide.  Does this also apply to reading the charges against the defendant?  If the defendant is charged with first degree rape, then there you go, the word is already on the table.  Just stupid.

Mark,

I tend to agree.  If someone is charged with Rape, how can you avoid using the word that communicates what we all know it to be?  Is "sexual assault" any better?  

Maybe we should make speeding "causing your wheels to turn too quickly while in contact with a public street".  Smiley



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Ready4Freddy
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Re: Use of the "R" Word in a Criminal Trial
« Reply #13 on: July 12, 2007, 06:54:54 AM »

I tend to agree.  If someone is charged with Rape, how can you avoid using the word that communicates what we all know it to be?  Is "sexual assault" any better?

Hi Epub.  Apparently the defendant wasn't charged with 'Rape'.  As TM noted above:

Sarah, I think just about every state does NOT have a rape statute on the books. They have sexual assault statutes. In Illinois we have criminal sexual assault, aggravated criminal sexual assault, predatory criminal sexual assault, misdemeanor sexual battery, etc. "Rape" is almost a biblical term, with the wrathful God/Old Testament connotations. Visigoth, Roman and Trojan soldiers raped women, the sophisticated modern man or woman only sexually assaults.

(That aside, I did enjoy your speeding euphemism!  ;>)
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LTC8K9
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Re: Use of the "R" Word in a Criminal Trial
« Reply #14 on: July 12, 2007, 08:10:52 AM »

Well, the Nebraska Supreme Court did not intervene.

The guy is not charged with rape, but she wants to say in court that he raped her?

That's like a person being charged with manslaughter and a relative wants to use the term murder, isn't it?
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