You hear the V word in the aging halls and courtrooms of the REGJB every day. You hear judges use it (wrongly), you hear prosecutors use it (understandably) and you hear defense attorneys use it (unforgivably) which causes us no end of agita.
The V word is of course "Victim".
Victim is a status, conferred not by the bringing of charges, but by the resolution of a case where if a defendant pleads guilty or is found guilty (rare occurrences in our practice) the COMPLAINING WITNESS now, and only now, is entitled to be called a victim.
Imagine a self defense case. A burglar breaks into an occupied home in the dead of night and is shot dead by the home owner. Charges are brought. The burglar is the deceased; the dead; the criminal; but certainly not the victim.
And yet, we hear all the time phrases coming from the bench like "did the victim give a deposition?" and the like. To which we respond, "there is no victim in this case. There is only a complaining witness" who in our world is some lying, conniving, devious, miscreant not worthy of sharing the same mask- purified air as the rest of civilized society.
Which is why we were surprised and gratified to see an experienced Judge - Michael Schroeder- in Kenosha, Wisconsin, prohibit the use of the V word in trials. Judge Schroeder is gaining notoriety for his handling of the Kyle Rittenhouse trial, and in this article in the Washington Post, his ban of the V word is discussed.
The late, great REGJB Judge Michael Salmon, during trial, when the complaining witness would make a (in our cases, mistaken) identification of the defendant, and when asked by the prosecutor to have the record reflect that the victim identified the defendant, would respond "that's for the jury to decide".
Bravo!
Do not use the V word please.
Any defense attorney who parrots "victim" should go practice writing wills and real estate closings. The only "victim" is the client. Always use the term COMPLAINING WITNESS or Person.
ReplyDeleteI disagree.
ReplyDeleteThey are “VICTIMS”. Maybe the defendant did not commit the crime BUT the VICTIMS were still the affected party recipient of a crime. Just because the term VICTIM is used does not on its own necessarily mean that a charged defendant caused the harm.
Just one retired Judge’s viewpoint.
Ouch ur dumb.
DeleteI would like to be a judge and terrorize convicted violent criminals. It seems the court house is missing a judge that puts the fear of God into defendants. But one who is loved by the hard core trial lawyers. Times have changed.
PS
Never wear a mask in trial.
924, glad you're retired.
ReplyDeleteMr. retired judge. There is no crime without a conviction. Recall the self defense case. There is a dead man, but not necessarily a crime. And if the defendant on that murder charge prevails on self defense, the dead man is not a victim (and never was a victim) and was instead the perpetrator of a crime. Get it? Calling the dead man "victim" eliminates the presumption of innocence.
ReplyDeleteRape charge, no denying that the defendant was the guy, but the elements can't be proven? Maybe the complaining witness had a change of heart - who knows. No victim.
Home invasion, defendant caught in the act, but it turns out that the home owner had invited the defendant in and then called the cops after a disagreement arose and drummed up the home invasion claim. No victim.
Do you see it yet? It's not about whether the defendant caused the hard (as you say), but whether a crime was committed. And you can't say that a crime was committed until AFTER a conviction.
I don't think so judge-- maybe in a pure mis-ID case but not in any other case. So in a self defense case would you as the judge refer to the complaining witness as a victim?? Umm, no that's very improper and unethical.
ReplyDelete9:24 Probably never tried a criminal case. Just another seeking to feed off the public teat.
ReplyDelete9:24 is right and should never have been allowed to retire. :) The reason to control our use of "victim" is not to signal the jury that the prosecution's theory of the case is right. In a mis-ID case, it would be less important because I am going to explicitly agree that he or she is probably a victim, but not of the poor child on trial.
ReplyDeleteBut, retired judge, where there is no crime, there is no victim. In the case of a homicide where the legal defense is self-defense -- that is, that the killing was justified, lawful, not a crime at all -- if the defendant prevails it will be because the finder of fact determines no crime occurred. Accordingly, the deceased in such a case is not a victim of a crime unless and until the jury says he is.
ReplyDeleteAs your comment demonstrates, calling the deceased a "victim" presupposes there was a crime. In a case like the one playing out this week in Wisconsin, that is ultimate and singular the question to be answered, because the defendant admits to the killings, but argues they were lawful -- that he committed no crime. Coloring the proceedings with that presupposition would be prejudicial, as the judge in Wisconsin understood and as most of the baying media, nearly everyone on Twitter and -- respectfully -- you, seem not to understand.
@9:24 - Regardless of whether the "victims" were "the affected party recipient of the crime" (which inherently presupposes that a crime was committed-an issue that the jury still needs to decide), the prejudice to the defendant justifies the ruling.
ReplyDeleteYou are both wrong and trial master makes a habit of being wrong.
ReplyDeleteTo the robed readers of the blog: how many cases do you folks have assigned to you at any given time? Just curious.
ReplyDeletePerhaps better that you stay retired. While in some cases, the Defendant’s guilt or innocence is clearly not relevant to whether the witness is a “victim”, there are many where referring to the witness as a “victim” suggests a value judgment as to who was at fault, or whether a crime was committed. As a retired judge, you should know that.
ReplyDelete"Victim is a status, conferred not by the bringing of charges, but by the resolution of a case where if a defendant pleads guilty or is found guilty (rare occurrences in our practice) the COMPLAINING WITNESS now, and only now, is entitled to be called a victim."
ReplyDeleteWhat about cases where the perpetrator kills himself before he can be apprehended? What about cases when a defendant is arrested and charged, but kills himself before he can be tried and convicted? Is officialdom prohibited from ever using the word "victim" because those cases never concluded with a guilty verdict upheld on appeal?
Judge Schroeder has the balls to be on the ball.
ReplyDeleteScary words these in the WaPo article:
ReplyDelete“It seems like he’s aiming to let this man out of this courthouse scot-free and we’re not going to let that happen,” said Justin Blake, whose nephew Jacob Blake was shot by a police officer last year, triggering the nights of unrest that drew Rittenhouse to Kenosha. “If it happens, we’re not going to be quiet about it.”