The National Law Journal (June 16, 2008) in an article by reporter Tresa Baldas, reports an increasing number of cases where judges restrict the use of certain words in criminal prosecutions. The article Hot-button words are iced in court says that a steadily increasing number of courts across the United States are prohibiting witnesses and victims from saying certain words in front of the jury such as "rape" or "victim" or even "crime scene." In white collar criminal cases words like "embezzle" or "defraud" have been prohibited. Other words have been banned by judges as well. Words like "homicide" or "drunk" or "murderer" or even "killer" have been banned. The article says that to date there has been no federal ruling on this issue.

It is true that certain words have a subconscious impact which the listener may not full realize. Some words like "abortion" or "gay marriage" can evoke an emotional response when they spoken. Clearly there are many words which may cause an uncontrolled or unrealized visceral reaction and therefore can influence the thinking of the listener without being fully aware of it. On the other hand, it goes against the grain to restrict witnesses from using words because it has an aspect of controlling what they say.

I am not aware of any civil trials where this was a major issue except for the famous trial involving Washington state and nuclear reactors. The "WPPSS" trial involved the 1982 default on bonds sold to finance nuclear reactors in Washington when costs and delays drove the total construction costs in excess of $24 Billion. Lawsuits were filed over the default and in the trial the court prohibited anyone from using the phrase "WPPSS" because it was commonly pronounced "Whops."

While courts can, and do, exclude prejudicial statements or statements that are irrelevant from testimony, the idea of prohibiting the word "murder" in a murder trial seems strange to me. I also have an inherent fear of judicial gag orders of all kinds and worry about where this leads if unrestricted. I think trials have become more like rehearsed plays than a spontaneous drama being acted out in front of a jury. It requires experience and skill for a judge to monitor a spontaneous trial. It takes experience and skill for a lawyer to try such a case. Every aspect of our trials today are so fully disclosed and sanitized in advance that they lack the drama that trials used to have when experienced judges and lawyers were conducting them. I continue to favor the Oregon state system with it’s restricted discovery and no advance n.