CAUSE NO.  ____________

THE STATE OF TEXAS

V.

DEFENDANT
§	IN THE ____________COURT
§
§	OF
§
§	_______________ COUNTY, TEXAS
DEFENDANT’S MOTION TO EXCLUDE USE OF PREJUDICIAL TERMS

TO THE HONORABLE JUDGE OF SAID COURT:
	Defendant stands charged by indictment with the crime of aggravated sexual assault, which crime is alleged to have occurred more than ten years ago. The complainant is Defendant’s sixteen year old daughter who did not make the allegations against Defendant until after Defendant's daughter had been subjected to almost a year of “counseling”, together with the administration of psychotropic medications. There is no evidence in the contemporaneous medical records relating to this child which would corroborate her allegation of having been raped when she was 4 or 5 years old.
	Defendant therefore moves that the prosecution be prohibited from the use of prejudicial terms at trial, during jury selection, or in the presence of witnesses. These prejudicial terms include the use of the word “victim” in referring to the witness against whom the crime of criminal sexual conduct was allegedly committed.
	The purpose of this motion is to prevent the prosecution from ignoring its duty to prove beyond a reasonable doubt that the crime of criminal sexual conduct in the first degree was actually committed and that Defendant committed the crime as charged. The purpose of this motion is also to prevent the prosecution from interjecting the prosecutor’s personal opinion that a crime has in fact occurred, or that the witness actually suffered an attack as alleged in the indictment.
	In support of this motion, Defendant relies upon the argument set forth in the memorandum accompanying this motion.
MEMORANDUM IN SUPPORT
	Due process requires minimal injection of error or prejudice into these proceedings. Use of terms such as "victim" allows the focus to shift to the accused rather than  remain on the proof of every element of the crime alleged by the complainant. As a threshold inquiry, the prosecution must first offer enough evidence for a court to conclude that a rational trier of fact could find that the essential elements of the crime have been established. In re Winship, 397 U.S. 358 (1970); Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979); Ieppert v. State,  908 S.W.2d 217, 219 (Tex. Crim. App. 1995) (en banc); Short v. State, 874 S.W.2d 666, 667 (Tex. Crim. App. 1994) (en banc); Article 38.03, Tex. Code Crim. Proc.
	The sufficient evidence requirement is a part of every criminal defendant's due process rights. It is an attempt to give "concrete substance" to those rights, by precluding irrational jury verdicts. Jackson, 443 U.S. at 315, 99 S.Ct. at 2786. As the Jackson court explained:
"The [In re Winship, 397 U.S. 358 (1970)] doctrine [requiring proof of guilt beyond a reasonable doubt] requires more than simply a trial ritual. A doctrine establishing so fundamental a substantive constitutional standard must also require that the fact finder will rationally apply that standard to the facts in evidence. A 'reasonable doubt' at a minimum, is one based upon 'reason'.  Yet a properly instructed jury may occasionally convict even when  it can be said that no rational trier of fact could find guilt beyond a reasonable doubt. 443 U.S. at 316-317, 99 S.Ct. at 2788.

	Defendant is presumed to be innocent of the charges against him. Blue v. State, 41 S.W.3d 129 (Tex. Crim. App. 2000).  "The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice." Estelle v. Williams, 425 U.S. 501, 503 (1976). Working from the premise that an accused is innocent until proven guilty, it is the prosecution's burden to prove beyond a reasonable doubt the essential elements of the crime alleged. This presumption continues throughout the trial and into deliberations.
	Defendant denies that criminal sexual conduct occurred in this case. The burden of the prosecution should not be alleviated, minimized or diminished by the use of loaded words which imply that the prosecution has met its burden of proof that the crime alleged actually been committed. The use of the word victim by the prosecution is an attempt by the prosecution to imply,  from the outset of the case in voir dire, and throughout the trial, that the State has met its burden of proof that the alleged crime has in fact been committed.

Respectfully submitted,

                                                                 

CERTIFICATE OF SERVICE

	I, the undersigned attorney, certify that a true and correct copy of the foregoing was hand delivered, faxed, or mailed, postage prepaid, to the CrimDA/CtyAtty of _____________ County, Texas on the _____ day of .

CAUSE NO. 

THE STATE OF TEXAS

V.

DEFENDANT
§	IN THE ___________COURT
§
§	OF
§
§	______________ COUNTY, TEXAS
ORDER ON DEFENDANT'S MOTION TO EXCLUDE USE
OF PREJUDICIAL TERMS

	Defendant's Motion to Exclude Use of Prejudicial Terms having been presented to the Court, the Court is of the opinion that the Motion SHOULD be granted. It is, therefore, 
	ORDERED that the State of Texas, through its District Attorney and through is District Attorney, all witnesses called on behalf of the State, shall be prohibited from the use of prejudicial terms at trial, during jury selection, or in the presence of witnesses, including without limitation, the use of the word "victim" in referring to the witness against whom the crime of criminal sexual conduct was alleged committed.

	SIGNED ON                                                         , 200__.

							                                                              							JUDGE PRESIDING