State v. Sperou

Under ORS 136.415, “[W]here a defendant denies that any crime occurred, references to the complaining witness as a ‘victim’ may undermine the presumption of defendant’s innocence because it assumed defendant’s guilt, a fact that is necessarily not proved until the jury finds the defendant guilty.” See also Jackson v. Virginia, 442 US 307, 315, 99 S Ct 2781 (1979).

Defendant petitioned for review the Court of Appeal’s affirmation of the trial court’s denial of Defendant's motions to exclude the testimony of “other acts” as evidence and to prohibit the use of the term “victim” during trial. On appeal, Defendant argued that the repeated use of the term “victim” by the prosecutor constituted impermissible “vouching” for the credibility of the accusers and undermined the presumption of Defendant's innocence, which deprived him of a fair trial. In response, the State argued that when the term “victim” was used by the prosecutor, "it was not ‘vouching,’ but rather permissible advocacy.” Under ORS 136.415, “[W]here a defendant denies that any crime occurred, references to the complaining witness as a ‘victim’ may undermine the presumption of defendant’s innocence because it assumed defendant’s guilt, a fact that is necessarily not proved until the jury finds the defendant guilty.” See also Jackson v. Virginia, 442 US 307, 315, 99 S Ct 2781 (1979). The Court found that because Defendant had argued that no crime occurred, references by the other witnesses of the complaining witness as “victim” undermined the presumption of his innocence because it assumed guilt before a jury found him guilty. Thus, the Court held that when the accusers’ own testimony is the only evidence of the alleged criminal conduct, use of the term “victim” to refer to a complaining witness conveys the speaker’s belief that the accusers are credible, which is not harmless. Reversed and remanded.