Thursday, July 12, 2007

Alleged victim in rape trial where judge banned use of word "rape" vows to use it anyway.

The alleged victim in the rape trial where a judge banned use of the word "rape" has hired her own lawyer and says she'll use the word anyway. (See my previous post on this topic, though that was more about the discussion at IBTP than the trial, if you link to the discussion there you can see my initial legal discussion of it (before it was ended)).

First, a good lawyer should tell her that she faces contempt charges if she does this. The only proper course is an interlocutory appeal (an appeal that suspends the proceedings in the middle of the trial - which is only rarely granted). You can't just violate court orders because you disagree with them. Even if you win a later appeal on the merits, you still face contempt because court orders MUST be followed or else the system falls apart (so the theory goes). I actually think in certain circumstances, it should be ok to ignore a clearly illegal court order, but this wouldn't be one of them - judges have control of trial proceedings, and that includes decisions about what language or evidence can come in or not. I'm not quite sure how an appeal would work in this case, since it is the People who are plaintiff, not her - and so the prosecutor would have to file an appeal, I would think.

Second, even if she does this and faces the contempt, probably the judge would declare a mistrial, and so she only delays putting her alleged attacker behind bars (assuming he did it and is found guilty). She needs to understand that the trial is about finding the defendant's guilt or innocence, it is not a platform for her to make political statements.

Third, I actually don't think it will matter much - I don't think the prosecutor would fail to get a conviction just because certain words are not allowed. Jurors aren't idiots. They know what nonconsensual sex is. They have to go over each element of rape one by one. If they decide all of the elements have been established beyond a reasonable doubt, the defendant is convicted and that is that. The conviction does not have any less validity just because the word "rape" wasn't used.

Criminal trials are about guilt or innocence of defendants. They are not about anything else. They are not platforms for political speeches. They are not supposed to be open forums for any particular group. They are for one purpose and one purpose only. And so to analyze what goes on in them without regard to that purpose is rather missing the point. There is no "deeper meaning" to a trial than determination of guilt or innocence. If you search for one, you search in vain. Nothing not related to that determination is really all that relevant. And in fact, evidence not relevant to that determination is always barred because of that. (Federal Rule of Evidence 402; Michigan Rule of Evidence 402). And even relevant evidence is barred if that relevance is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cummulative evidence (FRE 403; MRE 403).

I hope everyone keeps that in mind before people again get upset without having much, if any, understanding of the process and what the ruling really means (and really whether it will even ultimately matter - e.g. will it actually prevent a conviction of an actually guilty defendant).


armagh444 said...

In approaching this issue you have, I think, hit upon one of the ways in which it is both a blessing and a curse to be an attorney.

Thorne said...

This is interesting. It then begs the question, which is more important to the victim of the alleged crime; her "right to free speech" (if that can be applied in this context- I don't know), or the conviction (?) and sentancing of her attacker? And would there be any possibility of her filing a civil suit of some sort against the courts or the judge in question? I've always found it odd (since OJ) that one could file a civil wrongful death against someone who was an alleged whatever who had been found "not guilty" criminally, and then, under a different set of rules (civil vs criminal) be found guilty. Why couldn't this sort of civil maneuvering be used against the judge/court? If it could, she could then follow the ruling and save her political position for another trial! LOL It seems that this might be especially effective if she lost her case, believing it was due to the limitation of language.
That takes me to another question. Why is it, that double jeopardy is applied to retrying someone found "not guilty" if the victim feels the case was handled poorly by prosecutors, yet a guilty verdict is open to appeal after appeal after appeal? Things that make (the layman) go Hmmmmmm....

DBB said...

"Free speech" simply doesn't apply in a criminal trial like this. It is not an open forum. It is about the state trying to prove its case against a defendant.

The difference between criminal and civil liability is that with criminal, they can take your freedom or your life, with civil, they can only take your money.

You can use the fact of conviction as evidence in a civil proceeding later - since the standard is higher for criminal, it can be used to establish things there.

And something that is sometimes difficult for people to accept is that this criminal trial isn't "her case" - it is the People versus Defendant, not Her vs Defendant. She is, at most, a witness, in the actual proceedings. The state is the plaintiff, not her.

The reason there is double jeopardy is to prevent a government from just retrying a case over and over again until it gets a jury to convict. That rather dilutes the whole reason for having a jury trial in the first place - to put the decision of guilt in hands outside of the government, though in practice, prosecutors still hold all the cards anyway.

The reason a guilty verdict is still open to appeal is basically because there is no double jeopardy issue with a guilty verdict. The government is not 'in jeopardy'. Keep in mind, though, that appeals are always very very limited - if there is sufficient evidence to support a jury's factual findings, those cannot be overturned, not even by the US Supreme Court. Not by any court. Appeals are mostly for legal issues. And in the case of criminal appeals, well, verdicts are almost always affirmed.

Thorne said...

Thanks, DBB.
Right. I suppose I really already knew this, and double jeapordy is definitely a sensible rule for the reasons you mention. It is often difficult to separate the victim from "her" case for the layperson. So, (hypothetically) if the alleged rapist is found not guilty, and the victim feels it was due to an unfair ruling by the judge, she has no recourse under the law?? (unless she can afford/cares to do the civil thing?)(I'm not just wondering re: this particular case. I've wondered this in the past, too)

DBB said...

Judges are immune from suit for pretty much anything they do as a judge. As are prosecutors, and all other government officials - it is called governmental immunity.

So no, there is no recourse with them. And because it is the state as plaintiff, really there is nothing a victim can do - criminal trials are not about victims. So yes, the only recourse would be a civil trial, which is usually pointless because almost all criminal defendants are broke.

But you can take heart - prosecutorial misconduct combined with basically unchecked prosecutorial power means that you are far far far far more likely to see things strongly slanted totally in the prosecutions favor, even to the point of convicting innocent defendants, than you are ever going to see an actually guilty defendant go free. Prosecutors hold all the cards and have far more powers than even judges, so the net effect is that if you are a defendant, innocent or not, you are pretty much screwed unless you have very powerful friends / tons of money, and even then, that won't necessarily save you.

Thorne said...

"But you can take heart - prosecutorial misconduct combined with basically unchecked prosecutorial power means that you are far far far far more likely to see things strongly slanted totally in the prosecutions favor"

Yeah.... that's another whole issue, eh??? ;) Are you still engaging over at FC? I had to bail. To many narrow minds there, (commenters, not site owners) I prefer dialogue with someone like you.

DBB said...

Yeah, that's a whole different issue - one I will write more on, I'm sure. It is a pet peeve of mine, after all...

And I do occasionally poke over to FC - you can find narrow minded people anywhere - I'm sure I'll post there again if the words come to me on a particular subject. One can always ignore the completely narrow minded, though I do make attempts to talk to everybody at times simply because I like to discuss things and even argue interesting issues.

And thanks for saying you like discussing things with me - I enjoy discussing things with you as well - lots of good intellectual stimulation all around!