Legal Blog

Carolyn Shapiro is an Assistant Professor of Law at Chicago-Kent College of Law, and she published an article last year titled The Limits of the Olympian Court: Common Law Judging versus Error Correction in the Supreme Court in the Washington & Lee Law Review. In her article, she shows how the Supreme Court's certiorari process has inadvertently led to inconsistent application of some legal standards by lower courts. Additionally, she provides some logical, simple, and compelling solutions for the problem.

For well over a hundred years, the Supreme Court has struggled to reduce the number of cases on its docket. In the 1970s and 80s, for example, the Court handled around 150 opinions per term, but by pruning the types of cases that the Court must take, the docket last term produced only 75 slip opinions. Since Supreme Court jurisdiction is now almost entirely discretionary, and because the Court wants to keep the docket from getting crowded again, the Court has decided to grant cert only when the issues in the case are overwhelmingly important, there is a circuit split on the issue, or when the issues affect matters of national interest. The explicit goal of the court is to choose cases that will obviously be precedent for future cases because it will contribute to uniformity in the law. The Court rarely takes a case merely to correct an error by a lower court because doing so does not lead to a new rule of law. Rule 10 of the Supreme Court details the "Considerations Governing Review on Certiorari" and it specifically states, "A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law." Some commentators have labeled the Supreme Court the "Olympian Court" because it likes to pronounce rules of law from on high but rarely likes to get involved in the nitty-gritty of error correction.

Since the Court does not normally take cases just to correct the errors of lower courts, some areas of the law are in chaos. If rules of law are misapplied too often, then the definition of the rule itself becomes uncertain. Professor Shapiro convincingly argues that areas of the law that are primarily governed by "standards" are more likely to become chaotic than areas of the law governed by "rules." A "rule" is a legal directive where the decisionmaker must reach specific outcomes if triggering facts are present. A "standard" gives the decisionmaker more discretion to consider all relevant factors, such as facts, policy issues, legal principles, and the rights of various parties. An example of a rule is that a police officer may always order a passenger out of a car during a routine traffic stop. Maryland v. Wilson, 519 U.S. 408, 415 (1997). "An example of a standard is that a court should grant summary judgment if, taking all inferences in favor of the non-moving party, a reasonable jury could not find for that party." Shapiro at 288 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

Because of the discretion that courts have when applying standards, it is more likely that areas of law governed by standards will have more inconsistencies than areas governed by rules. Furthermore, inconsistencies are more likely to develop in areas of law that are fact-intensive because courts can easily differentiate prior case law based on the facts, even if the factual differences are minor. Once inconsistencies develop in a particular area of law, if the body of law is large, then the problems can multiply. With a large body of law, it is difficult or impossible for a court to locate all relevant cases. Given the impossible task of locating all factually analogous cases, a court may intuitively decide the outcome of the case then locate case law that supports the desired result. This is called "selective search" (or confirmation bias), and Professor Shapiro provides compelling evidence that this is exactly how courts cope with the inconsistencies in some areas of law. Furthermore, courts may fall prey to "task interference"--the tendency to spend more time working on interesting or difficult cases than time working on run-of-the-mill cases. If there is a large body of law related to the case, then it is likely a mundane case, so it likely gets less attention than the more interesting cases.

Inconsistencies in the law (errors) are likely to occur in areas of law that are governed by standards, that have a large amount of precedent, that involve fact-intensive cases, or when courts view the cases as relatively uninteresting. The Supreme Court, however, does not like to take cases simple to correct errors, and these inconsistencies are left to multiply unchecked. By taking cases where the lower court correctly announced the standard but erroneously applied it, the Court could reduce some of the inconsistencies in the law because lower courts could use the Supreme Court's application of the standard to clarify their understanding of the standard. As shown above, however, the Court rarely takes cases just to apply a standard. Furthermore, the Court often declines to apply standards to the facts even in cases where the Court announces the standard. Professor Shapiro provides examples where the Court announces a standard but then declines to apply it. She provides other examples where the Court does apply a newly announced standard. There seems to be no rhyme or reason when the Court will apply a standard, and she suggests that the Court is simply unaware that applying the standard is extremely valuable to lower courts.

Professor Shapiro logically recommends that the Supreme Court apply newly announced standards whenever possible. She also recommends that the Court begin to take cases to correct inconsistencies in standards-based areas of law--despite the Court's reticence to be an error-correcting chamber. The Court could help lower courts by taking cases where it can do one or more of the following--analogically anchor a standard to a particular fact pattern, signal the importance of a particular segment of the law, or refine a standard by closing in on a rule or identifying key criteria of the standard.

The common law utilizes an analogical reasoning process where courts treat factually similar cases alike. A standard is often expressed in general (or even vague) language, so it is usually difficult or impossible to analogize a case to a standard. Prior cases, however, are perfectly suited for analogizing. The Supreme Court can analogically anchor a standard by deciding a case (or series of cases) that lower courts can then use as "fixed points for analysis." Professor Shapiro argues that analogical anchoring can combat "selective search" because lower courts must make their decisions consistent with the fixed points of Supreme Court precedent.

When the Court determines that an area of law is either overly inconsistent or application of a standard is headed in the wrong direction, then the Court can take cases that signal this to the lower courts. In the 1986 term, for example, the Court decided three cases related to summary judgment (Matsushita, Liberty Lobby, and Celotex) that clearly signaled to lower courts that summary judgment was being denied too often. If, and when, the Court thinks that an area of law is overly inconsistent, then clearly saying so would send a strong signal to lower courts to pay more attention to that area of law.

Finally, the Court can help resolve inconsistencies in the law by taking cases that close in on a rule or identify key criteria of a standard. The trend in common law is to, whenever possible, gradually refine principles into standards and standards into rules. Even when the Court decides a case without announcing a new rule or standard, the decision itself contributes to the gradual movement towards a rule. If the Court were to identify key criteria within a standard, for example, it would assist lower courts to apply that standard. Professor Shapiro uses BMW of North America, Inc. v. Gore, 517 U.S 559 (1996), as a strong example of the Court identifying key criteria without actually creating a new rule of law. In Gore, the Court instructed lower courts to especially look at three criteria when determining if punitive damage awards violated due process guarantees--1) "the degree of reprehensibility of the defendant's conduct," 2) the ratio between punitive and compensatory damages, 3) and the "civil or criminal penalties that could be imposed for comparable misconduct."

If the Supreme Court were to follow Professor Shapiro's advice and start granting cert to cases in an attempt to fight inconsistent application of standards, then many areas of law would benefit. She provides a thorough example showing how application of the McDonnell-Douglas burden-shifting standard for summary judgment in employment discrimination law is completely unpredictable. Her suggestions for changing the Supreme Court's cert criteria would likely help fix the inconsistencies in this area of law and other standards-based areas of law.

In American civil trials, plaintiffs must prove their cases by a preponderance of the evidence. Courts often define this as "more likely than not," and some courts and commentators define it as a greater than 50 percent probability of being true. Many courts have rejected the 50 percent definition, however, and Judge Richard Posner uses economic principles and the "Bus Hypothetical," to explain why. The Bus Hypo, however, is inconsistent with other economic principles and may not be an appropriate economic explanation of these cases.

Smith v. Rapid Transit, Inc.

The leading case that implies that courts do not define preponderance of the evidence as a greater than 50 percent probability of being true is Smith v. Rapid Transit, Inc., 317 Mass. 469 (1945). In Smith, the plaintiff’s car was run off the road by a bus, but no party was able to demonstrate conclusively who owned the bus. The evidence that the defendant owned the bus included: 1) the defendant operated a bus route that traveled on the street where the incident happened; 2) no other bus company had a permit to operate a bus route on that street; and 3) the bus company's timetable suggested that its bus would be at the location of the accident at the time of the accident. Because this was the only evidence, the district court directed a verdict for the defendant. The Supreme Judicial Court of Massachusetts upheld the directed verdict for the bus company because "[t]he most that can be said of the evidence in the instant case is that perhaps the mathematical chances somewhat favor the proposition that a bus of the defendant caused the accident. This was not enough." (Emphasis added.) The Court seemed to accept that a reasonable jury could have found that there was a greater than 50 percent chance that Rapid Transit caused the accident, but the plaintiff still had not proved her case by a preponderance of the evidence.

Economic Analysis of Law and Howard v. Wal-Mart

In his treatise, Economic Analysis of Law, Judge Posner interprets cases like Smith v. Rapid Transit to mean that courts do not define preponderance of the evidence as greater than 50 percent probability of being true. (7th ed. p. 650) To explain his analysis, Judge Posner uses the Bus Hypo, which is loosely based on the facts in Smith and strongly rooted in the analysis in Howard v. Wal-Mart Stores, Inc., 160 F.3d 358 (7th Cir. 1998).

In Howard v. Wal-Mart, Dolores Howard slipped and fell on liquid soap spilled on the floor of Wal-Mart. Although both sides investigated the issue, it was uncertain who spilled the soap--whether it was an employee or a different customer. Whoever spilled the soap was presumed negligent, so the only real dispute in the case was the identity of the soap spiller. If an employee spilled the soap, then Wal-Mart would be liable; if a customer spilled the soap, then Wal-Mart would not be liable. (Under Illinois law, Wal-Mart would be liable if a customer caused the spill and Wal-Mart should have cleaned it up before Howard slipped. There was no evidence how long the spill had been on the floor, so Howard could only recover if the facts proved an employee spilled the soap.) The evidence was ambiguous--some evidence suggested that a customer spilled the soap, but other evidence suggested that a Wal-Mart employee spilled the soap. Nevertheless, the factfinder had to choose, and the jury found that a Wal-Mart employee caused the spill and awarded Howard $18,750. Wal-Mart asked the judge to grant it judgment as a matter of law (essentially overturn the jury verdict), but the judge refused.

Wal-Mart appealed to the Seventh Circuit and argued that the evidence was too ambiguous to determine who caused the spill, and that the mere probability that a Wal-Mart employee caused the spill was not enough to find it liable. Said differently, Wal-Mart argued that Howard had not met her burden of persuasion and proved her case by a preponderance of the evidence. In a unanimous opinion, Judge Posner wrote that a reasonable jury could have found "that the balance of probabilities tipped in favor of the plaintiff, though surely only by a hair's breadth."

The Bus Hypo

The Howard appellate court answered the question, "Is a hair's breadth enough, though?" by using the Bus Hypothetical. Loosely based on the facts in Smith, the Bus Hypo involves a plaintiff hit by a bus, but it is impossible to distinguish between two possible owners of the bus--Company A or Company B. The only evidence to determine which company owns the bus is based on a probability--on the road where the accident happened, 51 percent of the buses are owned by Company A, and 49 percent are owned by Company B. Based on only this evidence, the plaintiff sues Company A. Assume that the elements of negligence are met, and like the Howard case, the only dispute in the case is the identity of the negligent party. When this is the only evidence, then many courts dismiss the case or enter judgment as a matter of law in favor of the defendant. (Howard had non-statistical evidence to suggest that a Wal-Mart employee spilled the soap.)

Judge Posner says that courts should dismiss cases like this because there are only three possible scenarios where the plaintiff would bring this case, and each scenario dictates that the case should be dismissed. The court does not know which of the three scenarios is actually happening, but since all three require the dismissal of the case, it is not necessary for the court to know. In the first scenario, the plaintiff investigated and concluded that the owner is Company B, not Company A, yet the plaintiff sues Company A anyway. (The plaintiff might have sued Company A because Company B was judgment proof.) In this scenario, the plaintiff should lose because forcing Company A to pay for Company B’s negligence is so patently inefficient that Judge Posner does not explain further. We can deduce, however, that since Company A had nothing to do with the accident, it would be inefficient to hold Company A liable because there is nothing Company A could have done to prevent the accident.

In the second scenario, the plaintiff was too lazy to conduct an investigation. Judge Posner reasoned that it would be inappropriate for a court to expend resources when the plaintiff has not "conducted a sufficient investigation to make reasonably clear that an expenditure of public resources is likely to yield a significant social benefit." Essentially, the plaintiff has not met her burden of production. Unless the plaintiff carries out a proper investigation that attempts to distinguish one owner from the other, courts should dismiss the case. From an economic perspective, however, it is not clear that the plaintiff should have to produce any more evidence. It might be best to assign the burden of production to the party that is the "cheapest evidence gatherer." In this hypothetical, it is probably cheaper for the bus company to investigate the location of its buses than it is for the plaintiff to investigate. This suggests that the plaintiff has met her burden of production and that the bus company should have to answer the charges. On the other hand, Judge Posner argues that allowing plaintiffs to make accusations without sufficient investigation is a waste of judicial resources. The administrative costs of dealing with bogus claims might outweigh the inefficiency of forcing the plaintiff to gather evidence even when the plaintiff is not the cheapest evidence gatherer. The Bus Hypo does not clearly resolve the balance between burden of production and administrative costs, and it is unclear whether this scenario favors dismissal or not.

The third scenario comes from Judge Posner's Economic Analysis of Law. In this scenario, both parties conduct a thorough investigation but cannot determine the owner of the bus--it is impossible to distinguish one company from the other. Judge Posner argues in his treatise that the court should still dismiss the case even though it is 51 percent likely that Company A is liable for the accident. If 1,000 cases were tried and decided, then Company A would be liable for all of them. This would result in 510 correct decisions (because Company A did cause the accident) and 490 errors (because Company A was found liable even though it did not actually cause the accident). Judge Posner then argues that dismissing all 1,000 cases would have only a slightly different error rate--490 correct cases (Company A did not cause the accident, so the dismissal is accurate) and 510 errors (Company A did cause the accident, so it is escaping liability). Dismissing the cases only causes 20 more errors, but it saves a massive amount of administrative costs because the court does not have to try 1,000 cases. Judge Posner further argues that holding Company A liable will mean that Company B has less incentive to take care because Company A will be liable for Company B's accidents when it is impossible to distinguish one company from the other. the evidence about the bus's owner is ambiguous. In economic terms, Company B will have externalized its accident costs when it is impossible to distinguish one company from the other.

The analysis of the third scenario is incomplete

Judge Posner's conclusion, however, makes an assumption about the total economic benefits. What is the total economic benefit that comes from running 1,000 trials where 510 are correctly decided compared to the total economic benefit that comes from dismissing those 1,000 cases. Dismissing the cases does save administrative costs, but it also places the burden of accidents on plaintiffs. As a society, we lose the benefit of those 510 correctly decided decisions. It is not clear that saving the administrative costs is more valuable than the benefit of 510 correctly decided decisions. Furthermore, it is not clear where the "save on administrative argument ends." Should courts dismiss small-value claims because the administrative costs are higher than the expected recovery?

To decide if courts should dismiss these cases, we must look at the economic effects of dismissing the cases. In the third scenario from the Bus Hypo, it is impossible for any party to distinguish the ownership of the bus between Company A and Company B. This lack of distinction is a cost--the cost of indistinction. Judge Posner assigns the cost of indistinction to the plaintiff because that reduces the administration costs of trying the cases. Normally, costs are assigned based on the cheapest way of avoiding the economic loss. If the only economic loss were the administrative costs of running a trial, then assigning the cost of indistinction to the plaintiff might be the most efficient alternative. Assigning the cost of indistinction to the plaintiff, however, creates some undesirable economic results.

If the cost of indistinction is assigned to the plaintiff, then the two bus companies now have an incentive to create more indistinction. With more indistinction, the bus companies will be able to avoid more liability for their negligent driving. As the bus companies create more indistinction, they are externalizing more of their accident costs. To combat the bus companies transferring of the costs of their negligence to the drivers, all potential plaintiffs will have an incentive to reduce indistinction.
If the cost of indistinction is assigned to one of the bus companies, however, that bus company will have an incentive to reduce indistinction. Because the company will be liable for any accident where the owner is indistinct, the company will spend money to create more distinction. A third possibility is to assign the cost of indistinction to multiple parties.

An economic analysis of the cost of indistinction would assign the cost of indistinction to the party or parties that can avoid indistinction for the least cost. (See the section titled "Hydraulic" Pressure. See also Posner § 6.4.) As shown below, it is more likely that the bus companies can avoid the cost of indistinction more easily than potential plaintiffs can.

Potential plaintiffs (all of the people that drive cars on streets with buses) can do a number of things to avoid indistinction if they are hit by a bus. 1) They can install video cameras on their cars. If they get into an accident, then the cameras will capture information about the buses. 2) They can decide not to drive on streets where the owner of a bus may not be distinct. 3) All potential plaintiffs can get together and pay bus companies never to use the same street as another bus company. Obviously, all of these solutions would cost a lot of money or have coordination problems.

The bus companies can also do things that improve their distinctiveness. 1) They can paint their buses distinctive colors, which may help witnesses distinguish one company from another. 2) They can install video cameras and GPS trackers on their buses. 3) They can keep detailed logs of the movements of their buses.

From these examples, it is easy to see that it costs the bus companies much less to improve distinctiveness than the total cost to all potential plaintiffs. If all potential plaintiffs wanted to improve distinctiveness by installing video cameras, for example, thousands of drivers would have to install the cameras. The bus companies, however, could install just a few dozen cameras on their buses and that would achieve the same improvement.

Judge Posner assigned the cost of indistinction to the plaintiff based only on the administrative costs. An analysis of the economic effects of assigning the cost of indistinction to the different parties, however, suggests that the cost should be assigned to the bus companies.

By placing the cost of indistinction on all of the bus companies, each bus company will have an incentive to reduce their indistinction. Alternatively, placing the cost on the bus company that operates the majority of the buses (Company A) gives that company an incentive to reduce indistinction. In either case, the bus company (or bus companies) can reduce indistinction cheaper than potential plaintiffs can.

Implications of the full evaluation of the Bus Hypo

In his treatise, Judge Posner proposed that courts do not define the preponderance standard with a simple 50%+ statistic. He used the Bus Hypo to support and explain his proposition. This analysis of the Bus Hypo merely shows that the Bus Hypo is not a good illustration of his proposition. This evaluation does not refute Judge Posner's suggestion that courts do not like to define preponderance by using percentages.

At first glance, this evaluation of the Bus Hypo suggests that Smith v. Rapid Transit was wrongly decided. At best, this evaluation says that an economic analysis of Smith would lead to a different result. There are probably non-economic reasons, however, to support the holding in Smith. See Causation, Responsibility, Risk, Probability, Naked Statistics, and Proof: Pruning the Bramble Bush by Clarifying the Concepts, 73 Iowa Law Review 1001, 1049-1067 (1988).

My thanks go to Professor Henry H. Perritt, Jr. and Professor Richard Wright for their help.

In the retrial of State v. Safi, the court has banned the use of the words "rape," "sexual assault," "victim," "assailant," and "sexual assault kit." Nebraska's first attempt to prosecute Pamir Safi ended in mistrial when the jurors deadlocked seven votes to five votes. The ban was in effect for the first trial, and the prosecutor must have thought it was effective because he tried unsuccessfully to get the court to ban the words "sex" and "intercourse" for the upcoming trial.

The blogosphere is boiling over with reasons why the court reached such a patently horrifying decision. The self-declared radical feminist, Twisty Faster, at I Blame the Patriarchy, blames, well the patriarchy. At Free Republic, however, contributors have identified the real culprit--liberal judges. Apparently liberal judges have even taken control of the courts in Lincoln, Nebraska. At the Democratic Underground, the natives are sure the judge is crazy, and the folks at the Neocon Command Center couldn't agree more. Also in agreement, are the long-time friends, Feministing.com and the conservative blog, Constitutionally Right. The decision represents "What's Wrong with the World" because it is clearly sexist, and RedGlitter couldn't agree more that this is clearly a case of "PC Stupidity." Finally, Bob Bankard concludes that Judge Jeffre Cheuvront is doing this because he is a "Frenchy."

Dahlia Lithwick was trained to be a lawyer, but born to be a writer. (I think she is great--I try to read everything she posts on Slate.com, and I usually agree with her opinions.) She wrote an entertaining piece about the Safi trail that declared the judge was waging a war on words. In fact, Lithwick's article was so popular that it was responsible for setting off the firestorm over the gag order, and most of the blog posts above quote her piece at length.

Two months ago, in an unrelated matter, Ms. Lithwick wrote about Alberto Gonzales's Congressional testimony. Then, as now, she found herself in unusual agreement with some odd characters; her original Gonzales article agreed with "'White House insiders' and the National Review that Alberto Gonzales disgraced himself" while testifying in front of Congress. Since her politics lean to the left, Lithwick thought it was odd that she was agreeing with her ideological opposites, so she reevaluated the situation. Just as Lithwick reevaluated her position about Gonzales, we might want to look a little more closely when radical feminists and Neocons agree that this gag order is a bad idea. On other hand, maybe this is the work of a patriarchal, anti-Democratic, Neocon-hating, anti-feminist, anti-conservative, French, sexist, liberal judge trying to advance a politically correct war on words.

The words "victim" and "assailant" are prejudicial

Of the five banned words, it easiest to understand why the judge banned "victim" and "assailant." Because it is disputed whether a crime occurred, words like "victim" and "assailant" are prejudicial, and it is probably a good idea to ban their use. The Connecticut Supreme Court, for example, held that it was reversible error when the district court used the term "victim" to describe the complainant in a rape case. In State v. Cortes, 851 A.2d 1230 (2004), the prosecutor, multiple witnesses, and even the judge called the complainant a victim "as many as eighty times." The Court said that in cases where it is undisputed that a crime has been committed and "only the identity of the perpetrator is in dispute, a court's use of the term 'victim' is not inappropriate." When there is a dispute over whether there is a crime or a victim, then if the court uses the term it "might convey to the jury, to whatever slight degree, its belief that a crime has been committed against the complainant." The Connecticut Supreme Court reversed the conviction because using the term "victim" violated the defendant's due process rights and the defendant had not received a fair trial.

Federal Rule of Evidence 403 (FRE 403) is grounded in due process guarantees and bars evidence "if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury." (Nebraska has a rule with the same language.) Just like it is prejudicial if the judge uses "victim" or "assailant," it is prejudicial if witnesses use those terms in cases where the occurrence of a crime is in dispute.

Witness should give facts, not opinions

When it is disputed whether the sexual encounter was consensual or not, it is up to the jury to decide if a sexual assault occurred. Trials have witnesses so the jury can collect facts and determine if the facts support the legal conclusion that a sexual assault occurred. With few exceptions, lay witnesses should not testify to opinions--they should only testify to the facts. FRE 701 severely restricts lay witnesses from providing opinions because the jury should be "in possession of an accurate reproduction of the event." Since lay witnesses are generally precluded from providing opinions, the lawyers will work hard to ask probing questions that present the facts to the jury.

Bowen, the complainant in this case, provided a great example why courts should generally not allow witnesses to give opinion testimony. Bowen said that the judge's order is "making [her] commit perjury." She has formed the legal opinion that her testimony was perjured. Obviously, her legal opinion is wrong. She did not commit perjury when she substituted words for the prohibited words. Lay witnesses should not testify that someone committed perjury--they can testify to the facts that may establish that someone lied or committed perjury, but they should not testify in the form of legal opinions.

Whether a "rape" or "sexual assault" occurred and whether there is a "victim" or an "assailant" are all in dispute, and using those terms would be testifying in the form of an opinion. Limiting the use of those terms in Safi's trial seems appropriate.

The word "rape" is nearly useless to the factfinder

Rape is a more common word than "sexual assault," "sexual assault kit," "victim," and "assailant", and many commentators are especially upset with the judge for banning this word. Many people believe that the victim will not be able to tell her side of the story without using the word rape. In this case, Bowen even thinks that not being able to use the word rape is perjurous.

It is not true that it is more difficult to tell the facts to the jury without using the word rape. Read these two examples of real testimony from a different case (1997 WL 33616424, at *13):

Q. (By prosecutor) "And what did he do, if anything then."
A. (Victim) "He raped me."
* * *
Q. (Prosecutor) "Tell the jury what happened."
A. "He raped me again and made me have oral sex with him."

The word "rape" here provides almost no information to the jury. The only responsive part of the answer was "[he] made me have oral sex with him." This actually tells the jury some facts about what happened. "He raped me" doesn't tell the jury anything about what happened. It tells the jury what the victim's opinion of the events are, but it doesn't tell the jury any facts. Was there penetration? Did he threaten her? Did he hit her? Did he use a condom? Was there a weapon? Did he say anything? Did she say anything? Especially, what did she say or do that would signal her lack of consent? "He raped me" doesn't even begin to answer these questions. The "probative value" of the word rape is almost non-existent. Prohibiting the word "rape" doesn't make it harder to explain the facts because the word "rape" doesn't provide any facts.

The English language has millions of words, and there are plenty of words to describe the facts of the case that are better than "rape." The most basic definition of rape has two aspects, 1) sexual activity 2) against the victim's will. To construct synonyms for rape, choose one word from the left side of the table and one word from the right side of the table:

"Rape" synonym generator
forced	sexual intercourse
compelled	penetration
coerced	fornication
constrained	coitus
obligatory	oral sex
pressured	sodomy
abusive	sex
involuntary	intercourse
unconsented
non-consensual
unwilling
impermitted
unallowed
refused
denied
rejected
unaccepted

This simple table produces 136 synonyms for "rape" that have not been banned in this case. Most of them provide more facts to the jury than the simple word "rape" and none of them are nearly as prejudicial.

"Sexual assault kit" is prejudicial and misleading

There are other terms that describe the contents of a "sexual assault kit" and using the term is prejudicial and might even mislead the jury. A sexual assault kit is a collection of materials used to gather evidence of a sexual assault. It includes swabs, a speculum, bags and cups for collecting body fluids and tissues, and often includes a camera for taking photographs.

Calling it a "sexual assault kit" in a jury trial is prejudicial because it implies that a sexual assault occurred. The kit is just a set of tools used to collect evidence, and there is no good reason to call it a sexual assault kit.

Furthermore, the "sexual assault kit" is potentially misleading because it might convey to the jury that the evidence or tests in the "kit" provide conclusive results. Some jurors might expect that a sexual assault kit is like a home ovulation test--you run the tests in the kit, and if the kit shows a smiley face then it was consensual sex, but if the kit displays an image of the electric chair then it was rape. There is nothing in a sexual assault kit that provides conclusive or magical answers about whether the sex was a sexual assault or not. The items in the kit merely collect evidence and there is no reason not to call the collected items "evidence."

Conclusion

If banning these five words allowed rapists to routinely go free, then it would be a travesty. If banning these five words leads to fair criminal trails for defendants, however, then it is a good thing. None of the words provide any facts to the jury, and none of the words are indispensable parts of the prosecution's case. All of the words are potentially prejudicial or confusing and it is within the court's discretion to ban their use. I agree with the Connecticut Supreme Court that courts should not usually ban words, but that there are cases where they need to be excluded. State v. Safi seems like one of those cases to me.

My thanks to Professor Henry H. Perritt, Jr. for his help.

The Conrad Black trial raged for 15 weeks in the federal courtroom of Judge Amy St. Eve. At the end of closing arguments, the judge said that it was a pleasure to work with so many highly skilled lawyers, and it is easy to understand why. The four defendants and the government were represented by some of the best American and Canadian criminal lawyers to be found.

To start his closing arguments, Ron Safer, a lawyer representing one of the defendants said that people sometimes confuse him with David Letterman. He then displayed a Top Ten List of evidence items that he said did not fit the government's theory of the case. Later, when he identified an eleventh item on the list, he said it was the "Top Ten (or so) list."

With a nod to Ron Safer and David Letterman, here are The Top Ten (or so) Moments During the Closing Arguments of US v. Black.

The charges in a nutshell: the four defendants were executives at a huge newspaper company and were accused of defrauding the company. A fifth executive, David Radler pled guilty and testified for the government.

Julie Ruder for the United States

# 11. Julie Ruder, an Assistant U.S. Attorney, delivered closing arguments for the government. Her tone was usually stern and angry, but she knew when to choose a different tone to be more effective. When talking about a "young associate" from an outside law firm that found suspicious transactions in the company's books, for example, she changed her inflection and cadence to cast him as the unwitting hero of the story.

# 10. Another time, her tone reflected disappointment instead of anger. She was talking about the government's star witness, David Radler, who testified for the government as part of a plea deal. She put pictures of Radler and the main defendant, Conrad Black, next to each other on the screen and contrasted their behavior. They both defrauded the company, and they both lied, but Radler accepted responsibility for his crimes by pleading guilty. She never said that Black had not accepted responsibility, but her inflection and cadence perfectly implied that Black was an irresponsible and evil man. She reinforced this by asking the jury to "Look into Mr. Black’s mind and heart."

Edward Genson for Conrad Black

# 9. When Edward Genson started, he was stuttering and hesitant. The effect was not weakness; instead it made me think that he was straining under the incredible burden of defending an innocent man.

Edward Greenspan, also for Conrad Black

# 8. Conrad Black is Canadian and his defense team included a top-notch Canadian lawyer, Edward Greenspan. Defense laywers like to establish a connection with the jury and remind the jury that their verdict will have serious consequences for their client. All six of the defense lawyers talked about the burden of proof, but Greenspan had a slightly different spin. He reminded the jury that he is Canadian, but he is also from Niagara Falls--our shared border--and we have "shared values." One of those values is that defendants are innocent until proven guilty because everyone is equal in the courtroom. This means equal justice for people you like and people you don’t like.

Eric Sussman delivered the rebuttal for the government

# 7. Sussman had a great line and he wanted to emphasize it. He leaned over to the microphone on the podium and said very slowly and clearly, "We do not care how Conrad Black spends his money; we care how he spends the shareholder's money." Great line and great delivery.

Michael Schacter for Peter Atkinson

# 6. Schacter used silence better than any other lawyer did. At one point, after powerfully rebutting one of the government's theories, he said in a grave voice, "This is not a game," and went silent. The entire courtroom was crushed by the seriousness of the trial.

Gus Newman for John Boultbee

# 5. The government alleged that the defendants hid their fraud from the shareholders. At one point, because Newman was talking about something that his client allegedly hid from everyone, Newman walked over to the government table and started loudly whispering his arguments to the jury. He said, "I am whispering right now because this is supposed to be a secret."

Patrick Tuite, also for John Boultbee

# 4. Patrick Tuite started his arguments differently than the other lawyers. He started while standing behind his seated client, Jack Boultbee, with his hands on Boultbee's shoulders. Tuite emphasized that his client is a good man and that the jury is judging him. All of the defense lawyers tried to personalize the case, but this was the single most effective tactic in closing arguments.

More Gus Newman

# 3. Newman would frequently read transcripts of the testimony. Listening to people read is normally very painful, but not when he did it. My favorite was when he read a portion of Radler's testimony about whether Radler recalled making a particular statement to the board of directors of the company. Newman read Radler's stumbling and stuttering answer that finally culminated with, "I would have to say yes." Newman's timing and tone made Radler sound like a liar or an idiot, but Newman wasn't overly dramatic. It was an excellent balance.

# 2. The court normally stopped for lunch at about 12:30 pm each day and at about 12:25 pm the judge told Mr. Newman to let the court know when he "is at a breaking point." He looks shocked and asks, "You mean for lunch only?"

Ron Safer for Mark Kipnis

# 1. During her closing arguments, Ruder said that the defendants had a problem because their fraud left a paper trail and anytime the company wanted to get a loan, the paper trail would be discovered. Ruder contended that the defendants tried to cover up the paper trail with more lies. To counter the government's accuasation, Safer asked the jury, "do you know how to get rid of a paper trail?" and then he slammed his hand down on the top page of his notebook, ripped the page out, held his hand in the air, crumpled the page up, and threw it on the ground. "That is how you get rid of a paper trail." He told the jury that it is to easy destroy documents showing an alleged fraud, and since the defendants did not destroy any documents, then the jury should infer that there was not a fraud. After he finished explaining his idea, Safer looked down at the paper and said, "Let me retrieve my outline." The courtroom laughed while he carefully un-crumpled the paper and put it on the podium.

My thanks to Professor Henry H. Perritt, Jr. for his help.