"And what does the LORD require of you But to do justice, to love kindness, and to walk humbly with your God"
-- Micah 6:8

"The duty of the prosecutor is to seek justice, not merely to convict."
-- American Bar Association Standard 3-1.2(c)

"There may be a legitimate diversity of opinion even among Catholics about waging war and applying the death penalty, but not however with regard to abortion and euthanasia."
--Pope Benedict XVI, June 2004

Friday, April 04, 2008

Vouching Towards Reversal?

In arguing before a jury, a lawyer may not "vouch" for the credibility of a witness. For example, an attorney cannot say, "that witness Fred was really believable. I know he's a good Christian man and would not come in here and lie to you good folks." A prosecutor could not say, "I've known officer Friendly for 10 years, and he's a fine officer and good man. He wouldn't lie to you."

Those are easy cases. It's a little more murky, however, when a lawyer is producing reasons why the jury should believe one witness and not another. In a recent case from the 5th Circuit, U.S. v. Gracia, the prosecutor made the following arguments in his closing statement:

First, the prosecutor expressed his opinion to the jury that the agents were “very, very credible” witnesses (“Statement One”). Second, the prosecutor asked the jurors rhetorically whether they thought that an agent “who has worked as a law enforcement agent for many years, that is his career, that is his chosen life, a man from this area, a man with a family, do you think that he would throw all that away by taking this stand and taking an oath and lying to you to get Mr. Gracia”; and whether the agents “would put their careers and criminal prosecution on the line for committing the offense of aggravated perjury” (“Statement Two”). Third, the prosecutor told the jury: “I’m going to ask you to respect their efforts as law enforcement officials and to believe the testimony that they offered” (“Statement Three”). Fourth, the prosecutor admonished the jurors that, to acquit Gracia, they would have to believe that the agents “got out of bed” on the day they arrested Gracia and decided that this was “the day that [they] were going to start [a] conspiracy to wrongfully convict Mr. Gracia” (“Statement Four”).
So as Ann over at Deliberations (a good-looking blog I've added to my blogroll) asks, can you pass the quiz and decide which of these 4 arguments, if any, are improper?

The 5th Circuit panel thought all four were not only improper, but egregious enough to merit reversal of the conviction. The judges opine that the problem is what they call "witness bolstering."

Here's my own view:

I thought #1 was improper, since no lawyer can give opinions as to witness credibility; but 2,3, and 4 are routine appeals to the jury as to why they should find the witnesses credible. It is not the prosecutor giving personal opinion or telling the jurors something not in evidence... presumably the agents were identified and their involvement in law enforcement was plain from their testimony.

So for the prosecutor to say, "there is no compelling reason for these witnesses to fabricate testimony, because they 1) have nothing to gain; 2) they worked hard on the case and therefore are credible based on the quality of that work; and 3) face harsh penalties including loss of job and imprisonment for perjury,"-- is not improper vouching, it is simply commonplace argument about witness credibility, and may or may not be particularly compelling, but is hardly improper.

The defense, of course, can counter each one of these arguments by arguing reasons why the agents might want to lie, and can itself argue why the defense witnesses are more credible, including any observations as to why a defense witness has nothing to gain by their testimony.

This stuff is routine, and I'm surprised the Circuit had a problem with it. Even if #1 and #3 were improper, it's hard to see how that can rise to reversible error. What's even more amazing is that the panel reversed on a ground that was not even objected to at trial! In other words, the panel is rewarding the bad lawering by the defense attorney by not holding them to the usual requirement that objections be made at trial so that the trial court has the opportunity to fix any alleged error.

HT: Capital Defense Weekly.

1 comment:

jigmeister said...

It's typical for the defense to question the credibility of law enforcement and for prosecutors to respond with a question, "why jeopardarize their careers by lying?" That's why its no surprise that the defense didn't object.

Sounds like prosecutors in the 5th circuit are going to have to be creative to counter defense credibility attacks that pass muster.

The 5th Cir. is usually conservative. Go figure.