Defendants sometimes argue, usually in sexual assault cases, that the complaining witness should not be called a "victim" during court proceedings. The basis of the argument is that using that term assumes the very fact to be proved, namely, the the defendant committed a crime against the complainant. Several courts around the country have accepted versions of this argument: State v. Devey, 138 P.3d 90 (Utah Ct. App. 2006) (“We agree with Devey that in cases such as this – where a defendant claims that the charged crime did not actually occur, and the allegations against that defendant are based almost exclusively on the complaining witness's testimony – the trial court, the State, and all witnesses should be prohibited from referring to the complaining witness as ‘the victim.’” However, isolated reference to the “victim” by a single witness was harmless error.) Jackson v. State, 600 A.2d 21 (Del. 1991) (“The term ‘victim’ is used appropriately during trial when there is no doubt that a crime was committed and simply the identity of the perpetrator is in issue. We agree with defendant that the word “victim” should not be used in a case where the commission of a crime is in dispute.” However, use of the term by the prosecutor did not rise to the level of plain error.) Talkington v. State, 682 S.W.2d 674 (Tex. Ct. App. 11 Dist. 1984) (conviction reversed because trial court referred to the complainant as the “victim” in a rape case where the defense was consent) [...]
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