Tuesday, September 18, 2007

Is It Frivolous For A Witness To Murder To Say "Killed"?

With the lawsuit filed against God to protest Tory Bowen's "frivolous" lawsuit I'm seeing many people who are clearly assuming that what happened to her can only happen at rape trials and generally minimizing the potential impact of Judge Jeffre Cheuvront's ruling. But are their assumptions true?

If the witness to an alleged rape (the alleged victim is considered to be a witness) committed in Nebraska can be banned from using any words which make legal judgments about what happened that means that witnesses to a murder committed in Nebraska can be banned from using words like "killed" since that likewise makes a legal assumption that can prejudice the jury against the defendant.

Imagine that you are on the witness stand, after the person closest to you is murdered before your eyes, trying your best to fully answer questions about what you experienced firsthand and you are asked to describe what you saw but you cannot say that the defendant pulled out a gun and killed the victim because of that one banned word. Now imagine having to evaluate every sentence you speak against a list of banned words and phrases -- knowing that if you miss even one banned word or phrase, a murderer is likely to go free.

How frivolous is that?

If you say not at all, but you see the same result in a rape trial as being frivolous that tells us what you really see as frivolous is the prosecution of rape cases.

Now imagine a federal judge threatening to let a murderer go in response to the lawsuit about whether the restriction in a murder case is correct.

Are you really okay with that?

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posted by Marcella Chester @ 11:18 AM   3 comments links to this post

3 Comments:

At September 18, 2007 2:00 PM, Blogger sly civilian said...

i'm sympathetic to the argument here, but you may want to clarify your terms.

Kill is not necessarily a legal term, where murder is. The law makes gradations in killing, from permissable, to manslaughter, to murder. To say someone was murdered, you would generally need to be able to establish both the act of killing as well as the state of mind of the killer.

In this case, i think it's entirely apt for the victim to testify to being raped, which is similarly a legal term. She can testify to both the action, as well as the lack of consent. These two elements, which she can attest to, are the elements of the crime.

that's my take here.

/not a lawyer but i play one on TV

 
At September 18, 2007 2:39 PM, Blogger Marcella Chester said...

Sly Civilian, a defense attorney could certainly argue that kill is a legal conclusion since if the defendant didn't kill the dead person there can be no murder.

The defense attorney could claim that only the jury can decide if the defendant killed anyone and if that person did kill another person what criminal statute if any did that killing violated.

People who don't understand what all the fuss is about in a rape trial may be able to more easily see the flaws in Judge Cheuvront's ruling when one of the future banned words could become "kill" using the application of Nebraska law that was applied in Tory Bowen's case.

 
At September 25, 2007 1:26 PM, Blogger Kaethe said...

While AP reports seem to imply that chambers filed his suit to mock Tory Bowen's suit, other reports suggest he was filing in support of Bowen and in objection to other Senator's efforts to curb so-called frivolous lawsuits.

>Chambers said senators periodically have offered bills prohibiting the filing of certain types of suits. He said his main objection [to those senator's bills]is that the constitution requires that the doors to the courthouse be open to all.

>"Thus anybody can file a lawsuit against anybody -- even God," Chambers said.

I haven't seen anything yet which clears up the issue, but since Chambers is a civil rights activist, with a history as "defender of the downtrodden", it seems unlikely that he was siding with the judge.

 

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