A criminal case is a lawsuit in which the government is suing a person.The idea is that every crime is a crime against the government. In Texas, for example, all charging instruments allege that the offense was committed "against the peace and dignity of the State." This idea -- that a crime is an affront to the crown, and that it must be punished by the crown's men -- is as ancient as the common law. If one person injures another and the government doesn't think that a law was violated, the government won't sue the person who caused the injury. If the government thinks that person violated the law, it will sue the person even if nobody was injured (most crime fits this pattern). The person allegedly injured in a crime is a witness (commonly the "complaining witness"). In the government's lawsuit against some other person, the prosecutor represents the government, and nobody else.
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I like to file this motion in some cases: MOTION IN LIMINE TO PREVENT ALL PARTIES FROM REFERRING TO
COMPLAINING WITNESS AS THE “VICTIM”
“Victim” is defined as:
“The person who is the object of a crime or tort, as the victim of a robbery is the person robbed.” See Black’s Law Dictionary, 5th Edition, 1979.
“1: A living being offered as a sacrifice in a religious right; 2: An individual injured or killed; 3: A person cheated, fooled or injured.” See The Merriam-Webster Collegiate Dictionary, 1995.
2. The prosecution, and sometimes even the court may be tempted to refer to the complaining witness as a “victim” at various times throughout the trial, within the hearing of the jury. Often the prosecution foresakes the individual’s name and refers to the complaining witness as a “victim” or “the victim.”
3. The prosecution’s use of the word “victim” is inappropriate for a number of reasons. It violates the accused’s Presumption of Innocence. An individual’s right to the Presumption of Innocence, while not grounded in the Constitution, has been recognized as a defendant’s right since the inception of our judicial system. Coffin v. U.S., 156 U.S. 432 (1895); In Re Winship, 397 U.S. 358 (1970). By referring to a complaining witness as the “victim,” the prosecution, and the court by its tacit approval, has told the jury that a crime was committed or that this person has been cheated, lied to or injured. Thus, the prosecution, and by inference the court, through the use of the word “victim,” is advising the jury that the prosecution has already proven an injury of some type and concluded that the person has been victimized, and directed, by inference, an essential element of the offense charged.
4. Furthermore, the prosecution is commenting on the credibility of the witnesses when addressing certain individuals as “victims.” The United States Supreme Court and the Oklahoma Court of Criminal Appeals have both held that the prosecution is prohibited from expressing their personal opinion during the trial about a witness’s credibility or whether a witness is telling the truth or not. Unites States v. Young, 470 U.S. 1 (1985); see Ray v. State, Okl.Cr., 510 P.2d 1395 (1973); Garrett v. State, 1942 OK CR, 123 P.2d 283; Robertson v. State, 1974 OK CR 87, 521 P.2d 1401; Dupree v. State, 1973 OK CR 397, 514 P.2d 425. When the prosecution addresses an individual as the “victim,” the prosecution is placing more weight on the individual’s testimony and stating to the jury this individual is telling the truth because he or she is the “victim.” Additionally, the prosecution’s conclusion, interpretation and opinion that a witness is a “victim” allows the prosecution to advise the jury that their belief is consistent with the complaining witness story.
5. Moreover, the use of “victim” should be prohibited by the Federal Rules of Evidence and Oklahoma Rules of Evidence - Rule 2403 (Title 12 O.S. § 2403). They allow relevant evidence to be excluded if the evidence’s probative value is outweighed by its prejudicial effect. The prosecution’s conclusion, judgment and assessment exhibited by the use of the word “victim” has no probative value. The jury alone determines whether the complaining witness is a “victim” or not, beyond a reasonable doubt. However, the word “victim” has significant prejudicial effect since the word alone means a wrong-doing, that some wrong has been committed and that the prosecution and the court believe this fact to be true. Essentially, allowing the word “victim” to be used also eliminates the causation element of the events in this case. Also, the prosecution takes the fact-finding job from the jury when the prosecution is allowed to refer to the complaining witness as the “victim.” Thus, the prejudicial effect substantially outweighs its probative value.
6. Also, the prosecution is removing the fact-finding job from the jury when they constantly refer to the individual as the “victim.” The jury’s job is to determine the facts of the case and from the facts whether or not there is a “victim.” There cannot be a “victim” unless the jury determines that there was a crime or a wrong committed. The prosecution’s reference to the individual as the “victim” is paramount to stating that the individual was injured and thus a crime was committed. Telling the jury that a crime was committed before the jury makes that determination usurps the jury’s decision.
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