NE: Trial judge bans the word "rape"
We read:
"It's the only way Tory Bowen knows to honestly describe what happened to her. She was raped. But a judge prohibited her from uttering the word `rape' in front of a jury. The term 'sexual assault' also was taboo, and Bowen could not refer to herself as a victim or use the word `assailant' to describe the man who allegedly raped her. The defendant's presumption of innocence and right to a fair trial trumps Bowen's right of free speech, said the Lincoln, Neb., judge who issued the order.
`It shouldn't be up to a judge to tell me whether or not I was raped,' Bowen said. `I should be able to tell the jury in my own words what happened to me.' Bowen's case is part of what some prosecutors and victim advocates see as a national trend in sexual assault cases."
Source
30 comments:
Every now and then a woman screams rape and it wasn't. When that happens I get so pissed off. It only hurts the women who truly needs justice. This seems to be a prime example of that.
Hello Good Gentles All!
This judge is a damn fool.
There is a clear and unambiguous difference between the right to the presumption of innocence and the right to not be accused of a criminal act.
In a criminal investigation I can be charged with anything. The burden of proof is on the prosecution.
This woman saying she was raped is merely leveling a charge and not proving a fact in law.
She may accuse the defendant of anything but she will have to proove it.
Further, without the use of these words how is she to even lodge the complaint?
"Your honor something happened but I can not say what. A person whom I cannot accuse committed a criminal act I can not describe."
Amazing.
How is the judge to apply the law if the gravemen of the crime can not be established by allowing the victim to assert what the alledged crime was?
We are now through the looking glass.
Pax,
InFides
If the singular term can’t be used, then the phrase “Forcible Penetration multiple times without consent” is what should be used. And if the scum sucking attorney objects to that, then perhaps “Personal bodily Trespassing, without consent”, can be used. And I am sure that there are several other phrases that could be used!
And the Jury would be able to figure out that the Judge and defense attorney are in bed together and are trying to force the witness to explain something and not letting her use her own words to do so.
Mobius
Interesting. The judge is simply a hypocrite and I can prove it. When a suspect of burglary is in his courtroom does he prevent the victim from saying they were burglarized? How about shoplifting? Is the victim (store) cautioned they may only say "collection of possible unrenumerated items"? Jeeze what is he going to make the victim of a gunshot say "[insert your own here]"?
This woman and her attorney need to take this case to a higher court, where they may find a "real" judge, who will instantly overturn this idiotic decision. The law also needs to be changed so that judges can be held accountable for their reckless decisions. Then, and only then, will the court system return to sanity.
Unfortunately, the woman saying she was "raped" or "sexually assaulted" is a legal conclusion. That sort of legal conclusion is one that the jury is empaneled to reach, and not a witness.
One must wonder what the prosecution and the woman's lawyers were doing. Were they asleep at the wheel during the briefs that the defense attorney filed? If the law and common sense so overwhelmingly supports the woman's claim that she should be able to use a legal conclusion, then it would have been easy to file a brief that defeated the defense's brief. As it is, they did not.
This woman and her attorney need to take this case to a higher court, where they may find a "real" judge, who will instantly overturn this idiotic decision.
They did, and the Federal Appeals Court ruled against her.
The sad thing is that the courts seem to be one of the most prominent places where freedom of speech does not exist.
For the woman to tell (the police) she was raped is not a legal conclusion, but an allegation that a crime may have been committed. When a medical test is performed by a doctor, (standard procedure) and if the findings are that a rape did in fact occur, then that becomes a conclusion which then can be presented to a court with the "expert testimony" from the doctor.
For the woman to tell (the police) she was raped is not a legal conclusion,
Correct. But the woman is not talking to the police in a court room. She is giving testimony, under oath. She can make the accusation all she wants outside a court, but in court - under oath - her statement that the guy "raped" her is not legally true until 12 / 6 men an women convict the guy.
When a medical test is performed by a doctor, (standard procedure) and if the findings are that a rape did in fact occur, then that becomes a conclusion which then can be presented to a court with the "expert testimony" from the doctor.
Sorry, but no. The doctor can present evidence that a rape occured. He can say that the physical evidence is consistant with a rape. That doesn't mean that she was raped legally until a jury says so.
Look at it this way.... the woman says he raped her.
Fine.
Where is the rape on his record? Where is the rape that she says he did on his rap sheet?
What the judge is apparently trying to say is that an accusation is not proof. She cannot say that she was raped as proof of the rape.
I disagree on many levels with the decision here. Yet I understand it and have seen the same rational used in other cases.
Hello Good Gentles All!
Hello Gitarcarver!
"Unfortunately, the woman saying she was "raped" or "sexually assaulted" is a legal conclusion. That sort of legal conclusion is one that the jury is empaneled to reach, and not a witness."
No, it is an allegation. Plaintifs alledge things. Defendants defend against the allegation.
That is why the defendent is alledged to have committed the act. The plaintiff can allege anything in court. Allegations do not establish legal fact.
Anyone can alledge anything but he must then proove it.
The judge appears to be disallowing the allegation. Let her speak and then let the jury decide if the allegation is supported in fact.
"What the judge is apparently trying to say is that an accusation is not proof. She cannot say that she was raped as proof of the rape."
These are two different things. Saying, "Your honor, as the plaintif, I alledge he raped me," merely levels a charge.
Saying, "Your honor, we the jury, after weighing the evidence find that it establishes the defendant's guilt," establishes a fact in law.
If indeed, the mere accusation is such that it is inadmissable as a an attempt to establish an unsupported fact then please explain how anyone can alledge a crime? How does one accuse someone of a crime without naming the specifics of the crime of which one believes him to be guilty? How does the plaintif establish her complaint?
Pax,
InFides
Hello Good Gentles All!
Hello Gitarcarver!
I thought I would also include the legal definition of 'allegation'.
3. (Law) A statement by a party of what he undertakes to prove, -- usually applied to each separate averment; the charge or matter undertaken to be proved.
dictionary.com
Pax,
InFides
The judge should move on. When you arn't allowed to use words to explane what happend because of the judge things are screwed up with a capital F
No, it is an allegation. Plaintifs alledge things. Defendants defend against the allegation.
Sorry, but that is not correct. The charges are allegations. Her statements on the stand are supposedly truthful statements. Therefore when she says, "he raped me," she is not alleging it, she is stating it as a fact.
And by the way, she is not the "plaintiff."
If indeed, the mere accusation is such that it is inadmissable as a an attempt to establish an unsupported fact then please explain how anyone can alledge a crime?
You've just proven my case for me. You are not allowed to make a statement on the stand that is not factual. That is the problem here. She cannot say "he raped me" because legally, he has not been proven to have raped her.
The problem is in the terminology. The crime "rape" is the same as her accusation. This is somewhat different than alleging "murder," but stating on the stand that you saw the defendant killed someone.
She is not allowed to allege a fact, and that is the problem.
I thought I would also include the legal definition of 'allegation'.
Thank you for the definition. You need to understand that the she is not attempting to prove anything - the state is. She is not alleging anything - the state is.
Once again, her statement of "he raped me" is a legal conclusion. The jury is the one that makes the determination whether she was raped or not.
gitcarver,
"Guilty of rape" is a legal conclusion. "Rape" is an action. "He raped me" is a statement of belief. The entire point of a court of law is to determine whether the statement of belief is actually true, and if so, to assign appropriate punishment as required by law.
A "rape" can occur without a legal conclusion. An accusation of rape can occur without an actual rape.
Therefore, "rape," by itself, cannot be a legal conclusion. Only by the addition of "guilty of" or "innocent of" does "rape" become part of a legal conclusion.
"He raped me" is a statement of belief.
Even assuming that this is correct (it isn't, but that is another story) a witness can't say what they "believe" to be true. They can only state what is true.
A "rape" can occur without a legal conclusion.
I agree. However, stating that a rape occured in a court is a legal conclusion - it is not a belief.
Only by the addition of "guilty of" or "innocent of" does "rape" become part of a legal conclusion.
So, you would allow the witness to say that the defendant robbed her, beat her, killed her mother, or whatever else she "believed?"
Of course not.
"Belief" and "truth" are not the same thing. Witnesses take an oath to tell the truth, not tell a "belief."
gitcarver,
Any statement about a fact, regardless of whether it's made in court or not, can only fall into one of three categories:
1 - The person making the statement believes it to be true, and it is, in fact, true.
2 - The person making the statement believes it to be true, but it is not true. (They're mistaken.)
3 - The person making the statement knows it to be false. (They're lying.)
If Type 1 statements where all that could ever be made in court (as in physically impossible for Type 2 or 3 statements to be made) then court cases would be easy and over in a couple of hours. The problem is that in spite of both the oath and good intentions, all three types of statements are common. That's why courts have to rely on physical evidence and multiple witnesses. The goal is to identify and weed out Type 2 and Type 3 statements.
So if this woman is actually making a Type 1 statement, then would it not be wrong to tell her she cannot say "That man raped me"? It seems to me that suppressing a statement which could be a Type 1 statement would be prejudicial against the person making the statement.
"Belief" and "truth" are not the same thing.
Exactly! But they are not mutually exclusive. A belief is simply a person's conclusion that some fact is actually so. A belief can only be accurate or inaccurate. A person cannot hold a belief that they know to be inaccurate. It is possible to hold a belief where the person is uncertain of its accuracy, but a belief which is supposedly known to be false is a logical contradiction.
Witnesses take an oath to tell the truth, not tell a "belief."
Due to the nature of human knowledge, it is impossible for any person to make a statement which they think is true without stating a belief. Period.
Try it out for yourself. I challenge you to make a statement you think is true which you do not believe.
So, you would allow the witness to say that the defendant robbed her, beat her, killed her mother, or whatever else she "believed?"
If she believes it, then she thinks it's true. If she thinks it's true then why would you suppress it? If she knows it's not true, then it's not a belief, it's a simple lie, in which case it's perjury and needs to be treated as such.
So, you would allow the witness to say that the defendant robbed her, beat her, killed her mother, or whatever else she "believed?"
Thinking about this some more, mere belief that something is true is not sufficient to establish it in a court of law. These are accusatory statements. Without additional evidence to back them up, they do not belong in a court of law because then they would be unsubstantiated accusations. But if there is supporting evidence, then there is no reason whatsoever to restrict such statements if she has good reason to believe they are true.
Hearsay is not permitted in court because the person making the statement does not have sufficient reason to believe the statement is true. However, a person giving direct eyewitness testimony has very good reason to believe certain things are true, even if they are mistaken.
Supressing hearsay except in narrowly defined instances is entirely legitimate due to the well established unreliability of such testimony.
However, suppressing direct eyewitness testimony for anything other than narrowly defined reasons, is making an a priori judgement that the testimony is false, thus putting the cart before the horse. After all, the whole point of a trial is to reach a judgement about what is true and what is not. That's making a judgement before the evidence is examined and a judgement is reached! In other words, it's the very definition of prejudice.
Hello Good Gentles All!
Hello EWTheckman!
Beautiful legal analysis.
Further, "However, suppressing direct eyewitness testimony for anything other than narrowly defined reasons, is making an a priori judgement that the testimony is false, thus putting the cart before the horse. After all, the whole point of a trial is to reach a judgement about what is true and what is not. That's making a judgement before the evidence is examined and a judgement is reached!"
A brilliant argument is worth repeating. I salute you. Consider this a digital high-five.
The issue is whether a statement by a witness is prime facie a fact by its mere utterance. The answer with respect to a legal proceeding is no. People state what they believe to be true and the jury decides which statements to credit and those to discredit.
Hello Gitarcarver!
First, I must say I absolutely enjoy debating with you. Such well reasoned arguments are a pleasure to explore. I am curious, where and from whom did you learn to debate? Clearly you have great skill and I am curious to know how you obtained it.
Correct call on 'plaintiff'. What was I thinking? Mea culpa. The state is prosecuting. Sorry, my concentration is civil not criminal.
She lost her appeal on first amendment grounds so I am not sure whether the judge's actions are still subject to further appealate review.
I have reread the article and cannot find the actual indictment but from the context of the article this appears to be a rape trial. I fail to see how the judge can ban the use of the word 'rape' in a rape trial. How is the clerk of the court even to read the charge if its mere utterance is prejudicial?
Notice also, how the judge banned any synonyms or euphemisms. How is this woman to plead her case if she can not use any terms to describe what she believes to have occurred?
"You've just proven my case for me. You are not allowed to make a statement on the stand that is not factual."
That makes no sense. In a criminal proceeding one side will be making a statement that is not factual. Either the state will be wrong or the defendant, when he claims his innocence, will be wrong. By this argument the defendant should not be allowed to get on the stand and testify to his innocence because he would be stating a fact not yet in evidence.
This is why defendants are not tried for perjury after they are convicted. If the defendant is found guilty the court accepts that he will have lied to defend himself and that to prosecute him for perjury makes no sense. BTW, this is why if a defendant frankly admits to having done the deed then his legal council can not allow him to lie about it on the stand. Legal ethics requires council to not suborn perjury.
"You need to understand that the she is not attempting to prove anything - the state is. She is not alleging anything - the state is."
I understand that fully. However, when she takes the stand she is testifying as a witness and, as such, entitled to give her version of the truth as she understands it. The same as any other witness. The defense has the right to impeach any witness's testimony under cross examination, including hers, subject to the rules of examination.
"So, you would allow the witness to say that the defendant robbed her, beat her, killed her mother, or whatever else she "believed?"
False argument. The rules of evidence are clear. Evidence must show relevance to the charge. Her testifying that the defendant beat her mother is inadmissable not because it is false or not what she believes but because it is not relevent to the charge of rape.
Pax,
InFides
If she believes it, then she thinks it's true. If she thinks it's true then why would you suppress it? If she knows it's not true, then it's not a belief, it's a simple lie, in which case it's perjury and needs to be treated as such.
Fine. I'll play along with this line of reasoning.
Arrest her for perjury then. The jury is the one who decides whether she was raped or not. Therefore her statement "he raped me" is not supported by the facts as the jury has not decided that the defendant is guilty of rape or not.
For her to say "he raped me" gets back to the idea that what she is saying is a legal conclusion. It is a legal conclusion that is yet to be decided and even then decided by a jury.
That's part of the problem - the act and the name of the crime are one in the same. I don't know how you get around that, but I do know that there is not a judge in the land that will allow a witness to make a legal conclusion on the stand.
After all, the whole point of a trial is to reach a judgement about what is true and what is not. That's making a judgement before the evidence is examined and a judgement is reached! In other words, it's the very definition of prejudice.
You've hit the nail right on the head. For the judge to allow a statement that she was raped is putting the cart before the horse as no rape has been proven.
Notice also, how the judge banned any synonyms or euphemisms. How is this woman to plead her case if she can not use any terms to describe what she believes to have occurred?
She is banned from using such terms that would taint the defendant or draw a legal conclusion. A term such as "sexual assault" is probably in the lesser and included charges of the indictment. That is why she cannot use them. I disagree with the banning of "victim" and "assailant" as those terms can be mitigated by using "alleged" in front of them.
That makes no sense. In a criminal proceeding one side will be making a statement that is not factual.
Let me end this here.
Please show me how the statement of "I was raped" is truthful if the defendant has not been convicted of rape. Show me how you allow a yet proven legal conclusion into the trial as a factual statement.
Hello Good Gentles All!
Hello Gitarcarver!
"Arrest her for perjury then. The jury is the one who decides whether she was raped or not."
You are confusing two different legal points. To commit perjury in this situation requires mens rea. If she genuinely belives she was raped then there is no perjury because she does not have the requisite state of mind to commit the felony.
If it can be shown that the woman precipitated a maliciuous prosecution by lying to the police and the courts she will liable. The difference is mens rea.
"You've hit the nail right on the head. For the judge to allow a statement that she was raped is putting the cart before the horse as no rape has been proven."
This is a jury trial. The jury decides matters of fact and guilt and the judge acts as referee and master of the law. Unless the judge issues a directed verdict he is not the jury. This is why if the jury exonerates, even if the judge knows deep down the defendant is guilty (consider nullification) he goes free.
"Please show me how the statement of "I was raped" is truthful if the defendant has not been convicted of rape. Show me how you allow a yet proven (sic) legal conclusion into the trial as a factual statement."
For the same reason I allow the defendant to take the stand and declare, "I did not commit rape." This is just as much a conclusion. This statement is no more true (in law) until the defendant is exonerated than her statement is true (in law) until he is convicted.
Are you suggesting that the defendant should not be allowed to take the stand and declare his innocence? Or are you suggesting that only uninvolved parties can testify?
You seem prepared to accept the assertions of the defendant but not the victim. By what reasoning is his testimony acceptable and her's is not?
The only way a verdict can be obtained is to allow both sides to present their respective cases. The jury is free to reject any evidence (testimony, forensics, relevent prior convictions or other materials.)
Pax,
InFides
Hello Good Gentles All!
Hello Gitarcarver!
I feel a little follow up on my part is in order. I wish to argue my position carefully. I owe you that respect.
"Please show me how the statement of "I was raped" is truthful if the defendant has not been convicted of rape."
Please explain how the court can even begin proceedings if such assertions can not be made.
"Show me how you allow a yet proven (sic) legal conclusion into the trial as a factual statement."
The trial is specifically to establish the truth or falsity of the statement.
I hate to be pedantic but here are some useful legal definitions:
Accuse:
To call or set as a prisoner at the bar of a court to answer to the matter charged in an indictment or complaint.
Charge:
An accusation of a wrong of offense; allegation; indictment; specification of something alleged.
Allegation:
A statement not yet proven.
Indictment:
The formal statement of an offense, as framed by the prosecuting authority of the State, and found by the grand jury.
Evidence:
All the means by which any alleged matter of fact whose truth is investigated at judicial trial is established or disproved.
Alleged:
To state without proof or before proving.
Testimony:
(Here are several types of testimony. See the note under opinion testimony. InFides)
Former testimony
Testimony that a witness gives at a different proceeding (as another hearing or a deposition.)
Negative testimony
Testimony concerning what did not happen.
Opinion testimony:
Testimony relaying opinion as opposed to direct knowledge of the facts at issue.
NOTE: Opinion testimony may be allowed in evidence when it helps the factfinder understand or determine the facts at issue. Such testimony by a lay witness (she is a witness to her own rape, InFides) must be rationally based on his or her perception. A qualified expert witness may also give opinion testimony. The expert's opinion may be based on facts or data that he or she perceives directly or of which he or she is made aware other than by direct perception at or before trial.
Positive testimony:
Testimony that presents an affirmative declaration of fact and is based on the personal knowledge of the testifier.
Reputation testimony
testimony concerning a person's reputation among associates or in the community.
Hearsay Evidence:
Testimony based on what a witness has heard from another person rather than on direct personal knowledge or experience.
(Here is an interesting fact lay people do not know. All evidence that is not direct eyewitness testimony is hearsay. This includes forensic evidence. When the expert witness testifies he testifies as to the integrity of his evidence and not whether he knows the defendant committed the crime. He can not make that assertion unless he actually saw the crime being committed. The best he can do, because he is an expert witness, is speculate as to guilt with respect to the evidence about which he is an expert. A non-expert witness or an expert testifying outside his area of expertise can not even speculate.
For example, a DNA expert discussing DNA evidence might say something like, "Given that the DNA match is one in 16 billion, I can conceive of no other person but the defendant having been at the scene when the crime was committed. He does not say the defendant did it but merely that he can not conceive of anyone else being there who could have done it. InFides)
Fact:
Something said to be true or supposed to have happened.
Fact:
An actual or alleged event or circumstance, as distinguished from its legal effect or consequence.
Question of fact:
A question concerning the reality of an alleged event or circumstance in a trial by jury, usually determined by the jury.
Verdict:
The finding or answer of a jury given to the court concerning a matter submitted to their judgment.
I hate to put all this out here but these terms have very specific meanings.
Pax,
InFides
Please show me how the statement of "I was raped" is truthful if the defendant has not been convicted of rape.
I can come up with such a scenario. Some scumbag does indeed rape the woman, and the police arrest a suspect for that rape. However the actual perpetrator is a different person. Remember that a part of the trial is to determine if the accused perpetrated the particular crime with which he is charged. The accused may indeed have prior convictions for rape, but part of the issue is whether the accused committed THIS rape. If they have the wrong man, then the victim's statement "I was raped" is true, yet the particular defendant has not been convicted of rape and should not be. Justice demands that the correct perpetrator be convicted in such a case.
Please show me how the statement of "I was raped" is truthful if the defendant has not been convicted of rape.
Sure. At this moment I am sitting at my computer typing this comment. It is an event which is happening at 2:51 PM my time. The fact that I am performing this action at this time will probably never be proven in a court of law. Yet even without the imprimatur of a court judgement, that statement is still completely true.
In other words, truth and "proven in court" are not necessarily the same things, just as belief does not necessarily correspond with true. Theoretically, "proven in court" always corresponds with "true", though we have good reason to believe that is isn't always so. But even at best, what will ever be "proven in court" can only ever be a tiny subset of what is actually true.
BTW… you seem to keep working on the assumption that Ms. Bowen was not actually raped. But there was nothing in the article to indicate that. There were 4 court cases mentioned in the article, of which two were about the alleged rape of Ms. Bowen. The first resulted in a deadlocked jury, and the second resulted in a mistrial due to publicity. The other two cases were another similar case with similar restrictions by the judge, and Ms. Bowen's appeal over the judge's restrictions. Though she lost the case about the restrictions, that one had nothing to do with the rape charges.
I'm simply flabbergasted that you think there is any difference between "he raped me" and "I did not rape her," or even statements like, "he hit me," or "he shot (at) me," or "I saw him break a window." All of these statements are assertions of fact. Assertions of fact are what the court system is all about. It seems that suppressing the ability of any witness to say "This is what happened," cannot help but further separate the concept of "proven in court" from "true."
Please show me how the statement of "I was raped" is truthful if the defendant has not been convicted of rape.
I would say that if she was in fact raped, then it would be a true statement regardless of a conviction. You are playing a game of semantics. By the same logic if the defendant states that he did not rape her, it is not a true statement because he has not been found innocent.
Hello Good Gentles All!
Hello EWTheckman!
"In other words, truth and "proven in court" are not necessarily the same things..."
There is an old joke in the legal profession that speaks directly to this idea.
'The difference between being right and proving you are right is legal fees.'
BTW, during the debate on the US constitution one of the things which most concerned people was the preservation of trial by jury. The Colonists had had enough of summary judgements by appointed judges. Twelve good men and true is, and always will be, the gold standard for any trial.
Article 3, Section 2
"In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."
"The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed; but when not committed within any State, the Trial shall be at such Place or Places as the Congress may by Law have directed."
Pax,
InFides
BTW, during the debate on the US constitution one of the things which most concerned people was the preservation of trial by jury.
Absolutely true. Yet if any prospective jurer is found to know the reason for a trial by jury, that is usually considered a reason for dismissing that person from the jury.
It's simply amazing how the legal (not justice) system has been twisted to undermine the whole concept of a jury trial.
Hello Good Gentles All!
Hello EWTheckman!
"Absolutely true. Yet if any prospective jurer is found to know the reason for a trial by jury, that is usually considered a reason for dismissing that person from the jury."
There is a very great difference between the law and other disciplines. Perhaps this is why people sometimes get confused over the use of certain terms in law versus those same terms as used in science, philosophy, or common use. That is why in my posts I frequently qualify my use of a term with the addition of 'in law.'
"It's simply amazing how the legal (not justice) system has been twisted to undermine the whole concept of a jury trial."
One of my law professors was fond of saying that if you want law go to court. If you want justice go to church.
Law and justice are not synonymous ideas. These days they hardly seem to be even remotely co-related.
Pax,
InFides
If she genuinely belives she was raped then there is no perjury because she does not have the requisite state of mind to commit the felony.
Yet legally, she was not raped. She cannot assert that she was leggally raped when in fact that is not the case. Are you really trying to say that the woman accusing the guy of rape doesn't realize that he has not been convicted of rape?
The jury decides matters of fact and guilt and the judge acts as referee and master of the law.
Right. And part of that refereeing is not allowing legal conclusions to be presented as fact.
You seem prepared to accept the assertions of the defendant but not the victim. By what reasoning is his testimony acceptable and her's is not?
The judge precluded mentioning of rape by the parties involved in the trial. The same rules apply to the defendant as the witnesses when he takes the stand as a witness.
The only way a verdict can be obtained is to allow both sides to present their respective cases.
I agree. So the legal conclusion that she was raped can be excluded as it is not factual. That is the point of this.
Please explain how the court can even begin proceedings if such assertions can not be made.
I've answered this before. The indictment makes assertions. The witness is there to present factual statements.
The fact that you have ignored this reasoning In other words, you have no support for your assertion that a legal conclusion is allowable as testimony.
I hate to put all this out here but these terms have very specific meanings.
Yes they do. Please try and apply the meanings appropriately instead of the way you wish them to be.
Sure. At this moment I am sitting at my computer typing this comment. It is an event which is happening at 2:51 PM my time. The fact that I am performing this action at this time will probably never be proven in a court of law.
I agree with this. However the difference is that the statement "he raped me" is a LEGAL CONCLUSION as well as possibly being factual. The JURY - not the witness - decides the legal conclusion.
BTW… you seem to keep working on the assumption that Ms. Bowen was not actually raped.
No, I am working on the fact that no one has been legally convicted of raping her. For her to assert otherwise is not accurate.
I would say that if she was in fact raped, then it would be a true statement regardless of a conviction. You are playing a game of semantics.
It is not a game. It is the point on which this was decided.
By the same logic if the defendant states that he did not rape her, it is not a true statement because he has not been found innocent.
You may want to rethink that one. The statement is legally true because at that moment, he has not been convicted of the crime and in fact, in the eyes of the law, is "innocent." His statement is legally accurate. Her statement is not legally accurate. Some defense lawyer successfully argued that allowing the woman to certain terms inflamed and prejudiced the jury.
I happen to disagree with the defense attorney's assertion and disagree with the ruling, but I can see the reasoning behind it.
If you don't think the accusation of "rape" is prejudicial and inflamatory, I have three words for you:
DUKE
LACROSSE
TEAM.
Hello Good Gentles All!
Hello Gitarcarver!
I think you are confusing an allegation, in law, with a fact as determined by a jury in law.
Also, it appears you are using 'fact' as used in science or logic as opposed to in law.
For example, in a logic proof statements of fact are made. These statements are incontrovertible facts which are then logically connected to create a proof which is logically valid and thus proves the conclusion irrefutably. The goal of all the logicians involved in the process is to find incontrovertible truth.
In law this process is entirely different.
The reason is because law is adversarial. The goal of both parties is to win and not necessarily prove truth or incontrovertible fact.
Thus parties in a proceeding are allowed to make statements which they believe to be factual but are yet contradictory.
"However the difference is that the statement "he raped me" is a LEGAL CONCLUSION ..."
First please, please look up the word 'statement' in a legal context. This is not a logic proof where statements must be irrefutably true before they can made, this is a legal proceeding.
Further, if we accept this premise then how is the woman to communicate to the jury that she believes she was raped if the word 'rape' and all its synonyms and euphemisms have been barred.
How is the jury to even know which charges to consider if no testimony outlining the believed gravamen of the crime can be presented?
How do I get the jury to believe that of all charges made against the defendant that she believes that the most serious one is the correct one when she can not make any allegation against the defendant that describes, no matter how obliquely, the charge?
The purpose of the jury is to weigh all evidence and decide which of the statements are, in law, factual and which, in law, are not.
"I've answered this before. The indictment makes assertions. The witness is there to present factual statements."
The fact that you have ignored this reasoning..."
I have not ignored I am applying the legal definitions to the process. Law and logic are not synonymous.
The word you used is assertion.
Assertion:
A positive statement or declaration, often without support or reason.
The proper word is allegation.
Allegation:
A statement made without proof or before proving.
Statement:
A oral or written assertion (as by a witness) or conduct intended as an assertion.
If you are going to argue law then argue law.
"So the legal conclusion that she was raped can be excluded as it is not factual. That is the point of this."
The witness is not making a legal conclusion she is making an allegation. Why is this concept so hard to grasp?
How does she even report the crime to police? She can not go and say something happened but I can not report it until I prove it. How would the process even get started?
"No, I am working on the fact that no one has been legally convicted of raping her. For her to assert otherwise is not accurate."
Please, please look up the meaning of the word 'assert.' You are using it correctly and yet still do not seem to understand its meaning in a legal context.
The gist of your argument seems to be that no witness can testify to anything he believes unless it is already accepted as fact by the jury. How are the jury to obtain the tesimony to determine its truth or falsity?
"I have three words for you:
DUKE, LACROSSE, TEAM."
I have some words for you as well.
Highly illegal prosecutorial misconduct.
Highly illegal suppression of exculpatory evidence in discovery.
Highly suspect and prejudicial public declarations prior to jury selection.
DISBARRED DISTRICT ATTORNEY.
Pax,
InFides
Hello Good Gentles All!
Hello Gitarcarver!
Some quick questions.
Yesterday, in court, a woman who was raped, beaten, slashed, stabbed and doused with bleach for 19 hours and then tied to bed that was set on fire and left for dead testified in court.
The prosecution asked her point blank if she could identify the man who raped and abused her.
Her reply, in open court, was to point to the defendant and say "That is the man who raped me."
The defense council in an interview later said that it is always a bad day to have the victim identify the defendant in court. (I agree with him, it sucks.)
Should her testimony be disallowed?
Should she be debarred from identifying her attacker in court on the grounds that no attack has yet been established as a fact in law?
Is the presumption of innocence so strong that no accusations can be made against the defendant in court until they are already established as a fact in law? (I must confess that I can not see how this is possible.)
If yes, than how are the jury to know what the allegations and testimony are a priori?
How are the jury to judge relevant facts which may aggravate or mitigate the offense and determine truth or falsity if they can not receive the victim's testimony until after the verdict has been rendered?
BTW, I do not know how much time you have spent in court but if you believe that every statement entered into evidence is ipso facto true because it would otherwise not be allowed into evidence in the first place then you have spent very little time in court. (Either that or you have been trying only saints.)
I can well remember on a number of occasions when witnesses made statements that I knew to be false.
The best thing to do is to impeach such witnesses either by direct cross or through other witnesses.
The advantage of allowing the tesimony is that by subsequently discrediting the witness all testimony of that witness becomes suspect even if only the one statement is demonstrably false.
If I can cast doubt on everything to which a witness testifies, even if the rest of it is absoluely true, I am more likely to prevail because the jury will reject all of the testimony as suspect. Juries do not appreciate being lied to even only just once.
But I can also remember occasions when I could not impeach false or mistaken testimony and it stood in evidence unimpeached. (That sucks, too.)
Law is in adversarial process. Truth and justice are, it is hoped, expected and desired, byproducts of that process. Frankly, (though no lawyer will probably concede this) law is simply a refined version of trial by combat where it is hoped that God will side with the righteous.
But the simple fact is that if I can practice law better than you even if your position is just I will probably prevail.
Pax,
InFides
Hello Good Gentles All!
Hello Gitarcarver!
One last point that might better illustrate how tesimony is viewed in law as opposed to in logic.
"The witness is there to present factual statements."
Actually, the witness is there to tell the truth. Remember the witness's oath requires the witness to tell the truth. Fact is determined by the jury.
A simple example.
I walk around the corner at the very instant I see man A strike and knock unconscious man B.
In court I would testify that I saw man A attack man B. This is the truth.
A second witness who happened to see the beginning of the fight testifies that he saw man B attempt to strike man A and miss. This is also the truth.
(Man B actually attacked man A and man A was merely defending himself. Man A is not culpable.)
Did I violate my oath? No.
Did I tell the truth? Yes.
Was is factually correct? No.
This is what the jury is tasked with ascertaining.
Witnesses tesify to the truth as they understand it. The jury determines fact (in law) based on the testimony entered into evidence.
It is as simple as that.
Pax,
InFides
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