Criminal – Referring to  ‘victim’ at trial may violate defendant’s rights

Where the defendant argued his constitutional rights were violated because the Commonwealth referred to the alleged victim as the victim at trial, thus removing the presumption of innocence that he is afforded under the Due Process Clause, the court outlined the factors the trial court must consider when deciding if the use violated the defendant’s rights.

Background

Gary Butler Murray Jr., challenges his convictions for strangulation and assault and battery on a family or household member.

Victim

Murray’s defense to the charges against him was that T.J. was never strangled or assaulted; thus, T.J. was not a “victim.” Murray
moved the trial court, in limine, to prevent the Commonwealth from referring to T.J. as a “victim” during the trial, arguing that labeling her as a “victim” removed the presumption of innocence that he is afforded under the Due Process Clause of the United States Constitution. The court denied the motion.

The Commonwealth argues that Murray failed to preserve this argument for appeal by raising it only through a motion in limine rather than contemporaneously objecting when the two Commonwealth’s witnesses used the word “victim.” However, a ruling on a motion in limine can “dispense[] with the necessity of a contemporaneous objection.”

Whether use of the word “victim” by a prosecutor or witness amounts to an improper opinion or otherwise violates the presumption of innocence afforded to criminal defendants is an issue of first impression in Virginia’s appellate courts. Many other states have considered this question.

For example, the Supreme Court of Oregon has persuasively observed that “where 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 assumes defendant’s guilt, a fact that is necessarily not proved until the jury finds the defendant guilty.” Other courts have agreed, concluding that labeling a witness as a “victim” could violate evidence rules or raise constitutional issues.

At the same time, other courts have concluded that there is no inherent problem with the word “victim,” which “can be vouching or subversive of the presumption of innocence,” but that “the manner, context, and frequency in which the term is used [is what] transforms its meaning and connotations.” Courts, therefore, have also found that references to a complaining witness as “victim” did not violate a defendant’s constitutional rights.

This court agrees that in a case in which it is unclear whether there is any victim in the first place, referring to a complaining witness as a “victim” may undermine a defendant’s presumption of innocence and may influence the jury. Ultimately, the propriety of using the term “victim” “will depend on the context in which the word is used.”

A circuit court must consider the unique circumstances of each case, including whether the word is used or planned to be used by the prosecutor, the Commonwealth’s witnesses, defense counsel or as part of the jury instructions. Thus, there is no per se rule forbidding use of the word “victim.” Rather, it is a rule of reason.

Here, even assuming without deciding that the trial court erred in denying Murray’s blanket motion in limine to prevent the Commonwealth from making any reference to the “victim,” any error was harmless. The two references were made by witnesses for the Commonwealth, not by the prosecution or the trial judge.

The context of one witness “indicates that he was using a term he viewed as synonymous with complainant” and he “never expressed an opinion that [the complaining witness] was victimized or that [the] defendant was guilty.” As for the other witness, as Murray’s counsel conceded at oral argument, this statement was “not a specific reference to the complaining witness.” This court is confident that the way “victim” was used in these two instances did not contribute to Murray’s conviction. Thus, any error here was harmless.

Jury instruction

Murray challenges the trial court’s decision to instruct the jury on Murray’s flight from the crime scene. Because more than a scintilla of the evidence presented at trial supported the jury instruction on flight, the trial court’s decision to give the instruction is affirmed.

Affirmed.

Murray Jr. v. Commonwealth, Record No. 1943-24-4, Feb. 24, 2026. CAV (Lorish). From the Circuit Court of Arlington County (Wheat). Lauren E. Brice, Assistant Public Defender (Virginia Indigent Defense Commission, on briefs), for appellant. Shelly R. James, Senior Assistant Attorney General (Jason S. Miyares, Attorney General, on brief), for appellee. VLW 026-7-064. 11 pp.

Full-Text Opinion

026-7-064
Virginia Lawyers Weekly