Monday, August 24, 2009

Common Media Mistakes with Legal Terminology

Language is the art and words are the tools of both the legal industry and the news media. Precision in language is often necessary to properly communicate what is intended. Subtle differences in word choices can sometimes make huge differences in the content. Precision in language is vital in both the law and in the media.

Below are some of the incorrect or imprecise word choices the media makes. Some may simply be technically incorrect with no impact on communication and others may subtly affect the public’s point of view or mental imagery.

Opening Arguments - If you are hearing one, then the opposing counsel forgot to object or the arguing lawyer is an excellent trial lawyer. Attorneys make opening statements at the beginning of the case and closing arguments at the end. Argument is impermissible in opening statements and will result in an “argumentative” objection. The purpose of an opening statement is to tell the jury what the evidence will show. The trick to lawyering is to make that statement as argumentative as possible without drawing a sustained objection.

Summation – A “summation” is an antiquated way to refer to a closing argument in a trial. The word “summation” creates an impression in the reader that the lawyers are simply summarizing, although the word literally means to argue points and conclusions. The term closing argument, usually shortened to “closing” is what you always hear in Oregon courts. For the reader, “closing argument” creates a better image of the tough arguments that the attorneys are making.

If you are hearing a summary and not an argument, you are the only one listening – everyone else is asleep, including the jury.

The jury found him innocent – Wrong. Juries don’t find criminal defendants innocent. A jury has two choices: not guilty or guilty. Everyone is presumed innocent under our constitution through the whole trial. By the media using this term incorrectly, they are changing around in the mind of the public the presumptions and burdens that form the basis of our justice system. For instance, a person can be found not guilty even if the jury is not convinced of a person’s innocence.

Innocent plea entered – That has never happened. Just like juries don’t find a person innocent, a person doesn’t plead innocent at his arraignment. He enters a plea of not guilty. He is always presumed innocent unless proven guilty.

Jury Selection – A correct term but a bit of a misnomer. We don’t actually select a jury. In fact, we don’t get to pick a single juror. It’s more of a jury de-selection, where we get to strike a number of jurors for cause or for giving us a bad vibe. The traditional term is voir dire, which literally means “to see the truth” and correctly interpreted as “to speak the truth,” actually summarizes the process better. We hear the jurors speak the truth and then we deselect some of them.

Innocent until proven guilty – Wrong. You are innocent unless proven guilty. “Innocent until proven guilty” gives you only one possible outcome: guilty. Writing that makes a guilty finding a foregone conclusion.

by C. Michael Arnold,
Attorney at Law
Arnold Law Office, LLC

Photo: The Lane County Courthouse as seen on a sunny summer day in 2009.

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