Opinion
AC35134
2013-10-02
STATE v. THOMPSON
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CONCURRENCE
LAVINE, J., concurring. A prosecutor's excessive use of the word "victim" is objectionable when the commission of a crime is at issue "because prevalent use of the term may cause the jury to draw an improper inference that the defendant committed a crime against the complainant." State v. Warholic, 278 Conn. 354, 370 n.7, 897 A.2d 569 (2006); see also State v. Victor O., 301 Conn. 163, 191 n.11, 20 A.3d 669, cert. denied, U.S. , 132 S. Ct. 583, 181 L. Ed. 2d 429 (2011). It is properly disfavored and can form the basis, depending on the circumstances, of a prosecutorial impropriety claim.
It is, however, appropriate to note that while the word "victim" carries with it a distinct legal connotation when used in the setting of a trial against a particular criminal defendant, the word "victim" has a different, broader meaning when used in its colloquial sense. As our case law recognizes, juries understand that when the person making reference to the complaining witness is the prosecutor, the word "victim" is understood to mean "alleged victim." State v. Smith, 51 Conn. App. 589, 592, 724 A.2d 527 (1999). To put it another way, virtually everyone understands that in its everyday sense, a "victim" is someone against whom a crime has been committed, or, at the very least, someone who claims that a crime has been committed against him or her. It is against this commonsense understanding of the word "victim," informed by decades of crime dramas, television reports, and high profile trials, that the prosecutor's repeated use of the word "victim" must be measured. Given the reality that the word "victim" carries this broader meaning, and that jurors readily understand that prosecutors, police, and others in the criminal justice system habitually use the word "victim" as shorthand for "alleged victim," I conclude that, while the use of the word "victim" is improper in cases in which there is a dispute as to whether a crime was committed, generally, its use is less likely to create a real injustice than other more weighty prosecutorial improprieties.
It is agreed—indeed, the trial court expressly concluded—that the prosecutor's use of the word "victim" in this case was inadvertent. As the majority noted, there is nothing whatever in the record to suggest that the prosecutor repeatedly used the word "victim" surreptitiously to express her personal opinion about the charges against the defendant or to gain an unfair tactical advantage. Given the facts of this case—particularly in light of the trial court's strong and effective curative instructions and the prosecutor's apologies—I conclude that the defendant suffered no harm whatever as a consequence of the prosecutor's unaccountable mistakes. I would go further. I would posit that the prosecu- tor's conduct, if it disadvantaged anyone at all in the jury's eyes, was injurious to the state because the jury must have been left to wonder why the prosecutor could not conform her conduct to the repeated instructions of the court.
For the foregoing reasons, I concur in the majority opinion.