Motion in Limine: “Victim”

The newest motion to many jurisdictions is a motion in limine to prevent the prosecution from referring to the alleged victim as a “victim”.  This motion is met with eye-rolls from both the prosecution and judges alike, but it has merit. 

The prosecution in a case, such as one alleging domestic violence, states that reference to the “alleged victim” as “the victim” is part of the prosecution’s theory of the case; however, such a reference is merely argument and should be left for closings.

While the motion does little more than rack up legal fees or make the defendant feel like they have a zealous advocate in their corner, it stands the test in terms of the rules of evidence.

Prosecutors feel that they should be able to present the alleged victim to the jury in a context of being a “victim”.  This is not because prosecutors are trying to gain an edge or are attempting to game the system, but instead because such a term is inherently ingrained in a prosecutor’s trial preparation.

In reality, however, a determination of whether the alleged victim is in fact a victim is left for no one other than the jury.  The jury decides whether a crime occurred – and therefore, whether the person the prosecution is presenting as the one who has been wronged by the defendant is in fact a victim.  We will dive into this topic further in future posts.