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In almost every sexual assault case he defends, Clarence E. Mock said he files motions to preclude words such as “rape” and “sexual assault kit” from being used in the trial. Mock of Oakland, Neb.’s Johnson and Mock said excluding potentially inflammatory and prejudicial words is key to ensuring his clients get a fair trial. “We all know that people can be demonized unfairly by words,” said Mock, whose latest sexual assault case led to a mistrial, partly because of publicity fueled by the issue of language use. As lawyers become more sophisticated about ways in which jurors are influenced, some say motions to limit certain terminology are becoming more common. The issue has raised concerns among some prosecutors and victims’ advocates, who worry about the impact of censoring witnesses’ testimony. “As more and more lawyers become specialized in criminal laws and there are more and more good training programs about what influences jurors, more and more lawyers would be and should be filing motions to restrict language in their cases,” said Amy Dillard, assistant professor at University of Baltimore School of Law. “I certainly think that criminal lawyers on both sides are more aware now than they were 15 or 20 years ago,” added Dillard, who was deputy public defender in Alexandria, Va., for more than 10 years. Mock successfully persuaded a judge to issue an order preventing words such as “rape” and “attack” from being used during the first-degree sexual assault case for Pamir Safi. Nebraska v. Safi, No. CR05-87 (Lancaster Co., Neb., Dist. Ct.). “Technically, witnesses are not allowed to testify in conclusory terms that violate the rules of evidence,” Mock said. “A victim should not be able to say ‘I was raped’ because that’s a legal conclusion.” Less credible witness? Tory Bowen, a Washington resident who’s the complainant in Safi, said testifying without being allowed to use words such as “rape” was unfair and made her less credible to jurors during her 13 hours of testimony. “To be a victim of rape and have to call it sex � it makes you feel ill,” she said. “It’s sickening. I feel like it’s the courts that are mandating me to commit perjury.” That trial led to a hung jury. When the judge issued an order forbidding Bowen from using certain words again prior to the second trial, she said she would not do so. “I decided not to sign it,” she said, adding she was willing to go to jail for it. “I couldn’t guarantee that I wouldn’t say those words . . . .I wanted a trial but by signing that, they are taking everything away from me.” The defense moved to strike Bowen as a witness because she would not comply with the judge’s order. Several victims’ organizations staged a demonstration in front of the courthouse by holding signs and covering their mouths with bandanas. On July 12, District Judge Jeffre Cheuvront declared a mistrial, citing publicity as well as Bowen’s actions. “The inescapable conclusion from the petition promoting the rally is that Ms. Bowen and her friends hoped to intimidate this court and interfere with the selection of a fair and impartial jury,” he wrote in the ruling. Mock said he agreed with the decision. “The incomprehensible conduct by Ms. Bowen and her supporters created an atmosphere in which a fair trial was simply not possible for Mr. Safi,” he said. Both sides said they are waiting to see whether the state will attempt to try the case for the third time. The judge indicated in his ruling that the case may need to be tried in another county. Wendy Murphy, who for five years mostly prosecuted child abuse and sex crime cases in Middlesex County, Mass., and who filed a brief on behalf of Bowen in Safi, compared it to prohibiting a robbery victim from saying he was robbed and requiring him to testify that someone unwillingly took his money. “It goes to the fundamental capacity of the jury to figure out credibility,” Murphy said. “When [the witnesses] get to that part of the crime where they have to stop and sit and hesitate and worry they are not fitting in with the judge’s order, that’s so harmful.” Since jurors are not instructed that witnesses are barred from using certain words, witnesses’ attempts to describe something without using words they deem most appropriate could make them look hesitant and not credible, said Murphy, an adjunct professor of law at New England School of Law. She is also co-director of the Judicial Language Project, which aims to identify inappropriate language in judicial opinions. The Bryant factor Like several other law professors, Murphy said the high-profile case of basketball star Kobe Bryant, who was accused of sexual assault in 2003, raised issues about words in courtrooms. The defense counsel in Bryant’s case asked that the word “victim” not be used. The charges were eventually dropped. “My sense is that after the Kobe Bryant case, these motions skyrocketed,” Murphy said of attempts to exclude the word “victim.” Lawyers said the prevalence of motions to preclude other words vary greatly depending on the jurisdiction, but are likely becoming more common. Penelope Pether, a professor at Villanova University School of Law who has done research in the area of language and law, said any judge who wants to decide which words to exclude from witnesses’ testimony should be educated about the impact of such a decision. “There is a crying need for judicial education about language and law, particularly and acutely in sexual assault cases,” Pether said. “I think if judges are going to censor, they need a pretty high level of sophistication in [the] area of what language does in informing their views and informing juries’ views and affecting survivors’ feelings.” Lawrence Solan, a Brooklyn Law School professor whose latest book is called Speaking of Crime: The Language of Criminal Justice, pointed out that both sides can rely on the power of language to help their case. For example, during the 1991 trial of William Kennedy Smith for sexual assault, his prominent Miami lawyer, Roy Black, repeatedly used the word “rapist” to successfully create an ironic effect, Solan said. Black asked the complainant questions such as whether she went to the house with “the rapist,” creating doubt among jurors about why the woman would have done that if he were indeed a rapist, Solan said. Generally, lawyers are becoming more aware that the way one frames the dialogue can affect a case’s outcome, Solan said. “That’s something that psychologists and linguists have known for many years and one thing that makes a very good lawyer,” he said. “Lawyers have been thinking about it more recently but I think good lawyers have always known this.”

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