Watching Your Language in Court

Time has an interesting article about a long-running rape prosecution in Nebraska that is raising First Amendment issues. In October 2004, Pamir Safi had sex with college student Tory Bowen in Lincoln, Nebraska. Safi claim the sex was consensual. Bowen claims she was too drunk to consent and had possibly been drugged. Safi stood trial for rape last October. Because the only issue was consent, the judge ruled that several words were off limits to attorneys and witnesses, including "rape" itself. Although article references "Nebraska law" as the basis for this decision, but all states and the federal courts have similar rules allowing judges to exclude testimony that is too prejudicial to a party.

That trial ended in a hung jury. Bowen claimed that her testimony was not particularly effective because she was too concerned with violating the judge's order. A retrial was set to start this spring, but Bowen refused to abide by the judge's order. Protesters showed up outside the courthouse. A petition was circulated objecting to the judge's order. As a result, the judge declared a mistrial during jury selection. Bowen has now gone to federal court, claiming the order violates her First Amendment rights.

On a broad basis, that argument surely won't fly. Lawyers and witnesses are bound by the rules of evidence, which restrict what can be said in court. Cops can't talk about evidence that has been suppressed due to Fourth Amendment violations. Prosecutors can't tell the jury about a defendant's prior convictions (in most cases). Defendants can't spin evidence-free conspiracy theories as a defense.

Does that mean the state trial judge has unlimited discretion in putting certain words off limits? Probably not. But it's hard to see that discretion not extending to be able to keep a witness from calling the defendant "a rapist" - after all, that's what the jury is there to decide.