San Diego Law Review


Michael Conklin

Library of Congress Authority File


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A trial court’s distinction between using the language “victim” and “complaining witness” may seem trivial, but it plays a significant role in the criminal justice system. Defense attorneys argue that using the term victim presupposes what the trial is meant to determine and therefore denies defendants’ constitutionally guaranteed presumption of innocence. Some defense attorneys have gone so far as to argue that “calling the deceased a victim is just as wrong as calling the defendant a criminal.” Conversely, prosecutors point out that the term victim is frequently used in statutes and that it does not necessarily presuppose criminal activity by the defendant. Furthermore, the alternative term, complaining witness, may lead jurors to associate the accuser’s testimony with trivial, annoying complaints by children or coworkers. These seemingly slight intimations at trial can bias a jury toward a particular conclusion, undermining its autonomy.

To further complicate the issue, the term victim is ambiguous in the U.S. legal system. It is defined differently between statutes, and sometimes it is not defined at all. Difficulties arise when determining who qualifies as a victim based on issues of adequacy of injury, causation, imaginary victims, and culpable or consenting victims. This Article reports the findings of a study on the effects of using victim or complaining witness on juror decision-making and concludes with a suggested best practice for addressing the legitimate complaints of both sides of the debate.

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