WHO'S THE VICTIM

By: Monte E. Hester; 1996 June

            Every criminal case has a "victim."  Who that is most often isn't known until the jury has returned a verdict.  My sympathies are with the "victim," whether it be the person injured by criminal conduct or the person falsely accused.

            The trial judge in a jury case refers to the complainant who has been shot as "the victim."  The judge refers to a young woman who claims she was raped as "the victim."  The prosecutor asks questions regarding "the victim."  The police officer gives testimony about "the victim."  The forensic witness such as a medical examiner refers to "the victim."

            The scenarios are unconstitutional comments on the evidence by the court, argumentative statements by the prosecutor and statements of opinion by witnesses of questions of law.

            It is our practice in the defense of self-defense cases, consent rape cases, and other cases where there is a dispute as to whether the complaining witness or decedent was the wrongdoer as opposed to our client, to move in limine for an order restricting the court, the prosecutor and witnesses from referring to the complaining witness or the deceased or Ms. Jane Doe or Mr. John Doe as "the victim."

            Article 4, § 16 of the Washington State Constitution provides, "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law..."

            Obviously, the constitutional provision recognizes the powerful influence that a judge has over jurors when the court makes a statement that appears to be an expression of opinion regarding facts at issue.  When a juror hears the judge refer to a particular person over and over again as a victim or as the victim, this apparent expression of belief by the court soon becomes an adopted belief by a juror.  Its hard to imagine a more prejudicial circumstance.

            The court in State v. Eisner, 95 Wn.2d 458 (1981), in reversing a case because of a judicial comment, cited State v. Jackson, 83 Wash. 514 (1915), and stated:

Every lawyer who has ever tried a case, and every judge who has ever presided at a trial, knows that jurors are inclined to regard the lawyers engaged in the trial as partisans, and are quick to attend an interruption by the judge, to which they may attach an importance and a meaning in no way intended.  It is the working of human nature of which all men who have had any experience in the trial of cases may take notice.  Between the contrary winds of advocacy, a juror would not be a man if he did not, in some of the distractions of mind which attend a hard fought and doubtful case, grasp the words and manner of the judge as a guide to lead him out of his perplexity.  On the other hand, a presiding judge has no way to measure the effect of his interruption.  The very fact that he takes a witness away from the attorney for examination may, in the tense atmosphere of the trial, lead to great prejudice.

            In State v. Lampshire, 74 Wn.2d 888 (1968), the court reversed a conviction even though no objection was made at the time of trial to the improper judicial comment.

            The court held that since a comment on the evidence violates a constitutional prohibition, the defendant's failure to object or move for a mistrial does not foreclose her from raising this issue on appeal.

            There is no comparable United States constitutional provision and in fact it is permissible and common for federal district court judges to interject themselves into a trial.

            However, a federal district judge must be careful not to take the role of an advocate or to give the jury the impression that he has done so.  U.S. v. Van Dyke, 14 F.3d 415, (8th Cir. 1994).  In this case the court stated:

We have always been reluctant to disturb a judgment of conviction by reason of a few isolated, allegedly prejudicial comments of a trial judge, particularly in a long trial. United States v. Leuth, 807 F.2d 719, 727 (8th Cir.1986) (citing United States v. Bland, 697 F.2d 262, 265 (8th Cir.1983).  When faced with a claim that a trial judge's prejudicial comments prevented a fair trial, this court will "balance and weigh the comments of the judge against the overall fairness of the trial ... [and conclude that] the balance is adversely tipped against the defendant in a criminal trial where the judge's role loses its color of neutrality and tends to accentuate and emphasize the prosecution's case.

14 F.3d at 417-418.

            The federal trial judge crosses the line when the judge becomes an advocate and gets involved with the zeal of a prosecutor.

            The rules of evidence also prohibit the asking of leading and/or argumentative questions.  ER 611.  Questions such as "Did you speak with the victim Jane Doe regarding the shooting?" are both argumentative and leading.  Any objection to this question because it contains the term "victim" results in a comment on the evidence by the court if the court overrules the objection.

            In Washington and under the Federal Rules, testimony in the form of an opinion is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.  See Federal and State Rule of Evidence 704.  There is a big difference between the question to an expert of "Do you have an opinion as to when John Doe was shot?" as compared to "Do you have an opinion as to when the victim was shot?"

            The latter question is both argumentative and leading.  The answer would be an opinion as to a legal conclusion and at least an answer dealing with a question of fact and law.  Specht v. Jensen, 853 F.2d 805 (10th Cir. 1988).  "Questions of law are the subject of the court's instructions and not the subject of expert testimony."

            See State v. Stover, 67 Wn.App. 228, 232 (1992) wherein the court held, "...cross examination designed to compel the witnesses to state legal conclusions were improper."

            Our constitution provides a defendant with the right to a fair trial.  A level playing field cannot include prejudicial comments by the court or other participants in the trial.  The use of the term victim as discussed is not necessary and is very easy to avoid.   The use of the term is materially prejudicial to a defendant while the non use of the term is not prejudicial to the Government.

            The analysis applicable to the use of the term victim applies as well to other often misused statements such as "crime scene."             The trial lawyer's early objection to the use of the objectionable terms in questions and answers and to comments by the court will serve our system well in its never ending pursuit of assuring a fair trial to all parties.