6/30/2017 8:56:17 AM 16CR57594

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1 /0/01 ::1 AM 1CR 1 IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF LANE STATE OF OREGON, ) No. 1CR ) Plaintiff, ) DEFENDANT'S MOTION IN LIMINE TO ) PREVENT ALL PARTIES FROM vs. ) REFERRING TO THE DECEASED AS ) THE "VICTIM" AND TO HER DEATH JEREMY KENT MILUTIN, ) AS A ) Defendant. ) ORAL ARGUMENT REQUESTED I. UTCR.00 INFORMATION 1 Pursuant to UTCR.00, Defendant estimates that testimony and oral argument on this 1 Motion will take 1 minutes. Defendant requests the services of a court reporter. 1^ I y I g II. MOTION; The Defendant respectfully moves this Court for an Order precluding all parties from referring to the deceased Cheryl Hart as the "victim" and to her death as a "murder," except as it may be necessary to explain to the jury what Mr. Milutin is charged with. If Defendant is ultimately Q convicted of Murder beyond a reasonable doubt, then the parties may refer to Cheryl Hart as the 1 "victim" and to her death as a "murder" for sentencing or other purposes. Until such time, Ms. Hart should be called by her name or as the "decedent," and his death should be referred to as a "death" or a "homicide." To refer to her (or anyone) as a "victim" states a conclusion only the jury can make in this case, and in fact interferes with their decision making process as well as the presumption of innocence. PAGE 1 MOTION IN LIMINE TO PREVENT USE OF THE WORD "VICTIM" OR THE USE OF THE WORD 00E. MAIN STREET, SUITE HILLSBORO, OREGON FAX 0--0

2 ^ 1. LAW AND ARGUMENT; I. Referring to the deceased as the *Mctim'' and the death of the deceased as "murder" violates the presumption of innocence Oregon's presumption of innocence is codified in O.R.S..1, which commands that, "[a] defendant in a criminal action is presumed to be innocent until the contrary is proved." Also, O.R.S..0() requires juries be instructed by the court ''ftlhat in criminal cases a person is innocent of a crime or wrong until the prosecution proves otherwise, and guilt shall be established beyond reasonable doubt." State v. Castrejon, 1 Or 0, 0 (1). But the presumption is not only statutory - it is a constitutional requirement. The Oregon Supreme Court has emphasized that even *'if our statutes did not so provide, the Due Process Clause of the Fourteenth Amendment to the United States Constitution would." State v. Douglas, Or 1, (1). The presumption of innocence has deep historical roots and is a core tenet of criminal law. "The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law." Cojfm v. United States, 1 U.S., (). The presumption is historically embodied in the Due Process Clause of the Federal Constitution. "Due process commands that no man shall lose his liberty unless the Government has borne the burden of... convincing the fact finder of his guilt." In re Winship, U.S., (10). The term "victim" is defined by statute as the ''person or persons who have suffered... harm as a result of a crime..." ORS The use of the term before or during trial is argumentative, because it assumes that a crime has occurred. In a case where the defendant contests whether the events actually happened, the core dispute is whether there was a crime at all - and therefore whether the complaining witness, or in this case, the deceased, is a "victim" or not. Referring to the deceased as the "victim" necessarily conveys the speaker's opinion that there was a crime, evincing a bias against the defendant and violating the presumption of innocence. PAGE MOTION IN LIMINE TO PREVENT USE OF THE WORD "VICTIM" OR THE USE OF THE WORD METROPOUTAN Pl'Bl.lC DKKKNDKR 00 E. MAIN STREET. SUITE HILLSBORO, OREGON FAX 0--0

3 The term "victim" is prejudicial to a fair trial. See Pachl v. Zenon, 1 Or App 0, (1) (buttons worn by courtroom observers displaying the phrase "Crime Victims United" were grounds for objection). Other jurisdictions have also found reference to an accuser as a "victim" to be inconsistent with the presumption of innocence: "In such cases [where the defense contends that no crime was committed], it is incompatible with the presumption of innocence for the prosecutor to refer to the complaining witness as the 'victim,' just as it is to refer to the defendant as a 'criminal.' Jacksonv. 00 A.d 1, (Del. 11). See also Allen v. A.d (Del. 1); n 1 1 Talkington v. State, S.W.d (Tex Ct App 1). Like the word "victim," the word "murder" has specific legal meaning. There are five categories of manner of death: natural, accidental, suicide, homicide, and undetermined. Homicide is both criminal and non-criminal. Murder is criminal homicide. ORS.00. Justifiable homicide is non-criminal. During a trial, when parties and witnesses refer to the incident as a "murder," it prematurely assumes a legal conclusion of criminal wrongdoing. Therefore, use of the term "murder" before it is proven beyond a reasonable doubt, is incorrect, improper, and inconsistent with the presumption of innocence. 1 II. Reference to the deceased as the ^S ictim" and the death as *'murder^' improperly 1 expresses a personal belief that the staters version of the facts is correct. 1 Oregon law recognizes that it is improper for the prosecutor or the court to express a personal 0 belief in the credibility of prosecution witnesses or a personal belief in a criminal defendant's guilt. 1 A lawyer may not assert his or her personal opinion as to the credibility of a witness at trial. See State v. Parker, Or, (1); State v. Cheney, 11 Or App. 01 (000). By referring to the deceased witness as the "victim," and the death as a "murder," both the prosecutor and the court appear to be vouching for the credibility of the state's witness's version of events. The use of the word "victim" necessarily implies that a crime indeed occurred. Referring to the death as a "murder" PAGE MOTION IN LIMINE TO PREVENT USE OF THE WORD "VICTIM" OR THE USE OF THE WORD "MURDER.'" METROPOLrrAN PUBLIC DEFENDER 00E. MAIN STREET, SUITE HILLSBORO, OREGON FAX 0--0

4 draws a legal conclusion that is ultimately the sole responsibility of the finder of fact to determine at the conclusion of all the evidence. It is improper for the court to appear to vouch for the credibility of a prosecution witness. "By words or conduct [the judge] may on the one hand support the character or testimony of a witness, or on the other may destroy the same, in the estimation of the jury; and thus his personal and official intluence is exerted to an unfair advantage of one of the parties." People v. Frank, 1 Cal. App., (1). Witnesses are similarly prohibited from giving their personal opinions as to the truthfulness of other witnesses' testimony. The Oregon Supreme Court has stated, "[w]e expressly hold that in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." State v. Middleton, Or, (1). This principle extends beyond clear, overt statements about the honesty of another witness. State v. Lupoli, Or, - (0) ("statements that fall short of such overt vouching [referring to Middleton] also may be impermissible.") Referring to the deceased as the "victim" is just such a statement, since it impliedly accepts the state's contention that a crime took place. Also, by referring to the death of the deceased as "murder," the express implication is that the crime of murder did indeed occur. PAGE MOTION IN LIMINE TO PREVENT USE OF THE WORD "VICTIM" OR THE USE OF THE WORD 00E. MAIN STREET, SUITE HILLSBORO, OREGON ^ FAX 0--0

5 IV. CONCLUSION Referring to the deceased as the "victim" would assume a legal conclusion that has not been proven. It would deny the defendant's right to be presumed innocent until proven otherwise, and his due process right to a fair trial. The Court should preclude use of the term "victim", and use instead the deceased's proper name, or the "deceased," to protect defendant's rights to a fair trial as outlined above. Additionally, for reasons of fundamental fairness and the presumption of innocence, the Court should preclude use of the term "murder" and instead use the term the "death" or "homicide." MOVED this Greg SchoU # Attorney for Defendant PAGE MOTION IN LIMINE TO PREVENT USE OF THE WORD "VICTIM" OR THE USE OF THE WORD METROPOLITAN PllBLIC DEFENDER 00E. MAIN STREET, SUITE HILLSBORO, OREGON FAX 0--0

6 CERTIFICATE OF SERVICE I certify that on C ^ \ l A l\ J( ^, I or a representative of "my office served the within: K0TI0N on the attorney of record for plaintiff by electronically serving him a true copy thereof as required by UTCR PAGE MOTION IN LIMINE TO PREVENT USE OF THE WORD "VICTIM" OR THE USE OF THE WORD 00 E. MAIN STREET. SUITE HILLSBORO, OREGON FAX 0--0