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Midnightwalk

(3,131 posts)
6. Is it really that cut and dry?
Thu Oct 28, 2021, 03:06 AM
Oct 2021

I’m not a lawyer so take this as an honest question.

If it was a general rule that prosecutors can’t use the term victim it seemed to me that the answer would have been “of course you can’t”, not that it was the judge’s general rule to not allow it.

So I did some googling. Yeah probably a dangerous thing for a non expert.

The first thing I found was that the defense in the Ahmaud Arbery case also tried to block the use of the word victim. I found other rulings by the judge but couldn’t find what the judge ruled on the use of “victim”. Oh well.

Then I found this. It’s from a victim advocacy group so may not be 100% objective

Generally, a prosecutor may not express his
or her personal opinion on a defendant’s guilt. Defendants often object to a prosecutor’s use
of the term “victim”, arguing that it reflects
the government’s belief that the defendant is guilty. Specifically, they argue that the jury will give special weight to this opinion based on the prestige of the prosecutor and the fact-finding facilities available to the office. However, courts have rejected this argument based on jurors’ knowledge of the criminal justice system and
the role of prosecutors in the criminal trial.27

Any reference by the prosecutor to a victim
will be viewed as merely part of the state’s contention that, based on the state’s evidence, the complainant was a victim of the alleged crimes.28

For these reasons, courts have concluded that
it is not reasonably likely that a jury would interpret the prosecutor’s use of the term to reflect a personal belief in a defendant’s guilt. Even courts that have found that the prosecutor’s use of the term “victim” was in error have concluded that a standard jury instruction – that the comments of prosecutor are not evidence
and should be disregarded – will remove any prejudice that may arise.2


[link:https://law.lclark.edu/live/files/21940-use-of-the-term-victim-in-crim-proc11th-edpdf|]

I will say I wouldn’t want the judge to follow their arguments if I were on trial, but would if I were the victim. Innocent until proven guilty is a strong argument but I’m not sure if that clinches this argument.

I guess I’m really asking for some perspective on how often judges rule one way or the other on prosecutor’s use of “victim”?
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