One of the more enjoyable prerogatives of a blogger is to give quizzes. Today's quiz is on the improper practice of "vouching" for a witness's credibility. Here's the line you're trying to draw: it's okay in closing argument to suggest what inferences jurors should make from the evidence, but it's not okay to insert your own credibility by vouching for the credibility of a witness. The classic example of vouching is when the prosecutor says, "I've known this FBI agent for years, and I can tell you he wouldn't lie."
Got it? Okay. In the the trial that led to Fifth Circuit's United States v. Gracia opinion yesterday, defense counsel argued that the federal agents were lying. The prosecutor responded with the following arguments. Which ones are permissible inferences from the evidence, and which are impermissible vouching? Here you go:
1. "First, the prosecutor expressed his opinion to the jury that the agents were 'very, very credible' witnesses ('Statement One').
2. "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').
3. "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').
4. "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')."
The Fifth Circuit's answer, which surprised at least me: all four statements are vouching.
Not only vouching, but plain error, and Gracia's conviction was overturned. The court had no trouble deciding this:
The Supreme Court’s decision in Berger v. United States makes clear that a personal assertion by a prosecutor of a government witness’s credibility is impermissible. [I'm omitting footnote citations here and throughout this quote.] The American Bar Association’s standards for prosecutors echo this sentiment: “The prosecutor should not express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant.” The government may not cloak a witness in its “protective mantle.” A prosecutor may argue fair inferences from the evidence that a witness has no motive to lie, but cannot express a personal opinion on the credibility of witnesses.
As the government concedes, it is impermissible per se for a prosecutor to offer personal assurances to the jury that government witnesses are telling the truth, as in Statement One, or to tell the jury that law enforcement witnesses should be believed simply because they were doing their job, as in Statement Three.
Although the government does not concede that Statements Two and Four were errors, we cannot meaningfully distinguish the prosecutor’s admittedly improper remarks and those that the government does not concede were errors. All four statements urge conviction based not on the objective evidence before the jury or its independent judgment of the witnesses’ credibility, but on something uniquely within the prosecutor’s knowledge. We have held it improper for a prosecutor to ask a jury the rhetorical question whether federal agents would risk their careers to commit perjury, as in Statement Two. We have deemed improper an unequivocal statement by a prosecutor that, for the jurors to believe the defense’s account, they would have to believe in a government conspiracy, as in Statement Four. The subject remarks of Gracia’s prosecutor share the same basic flaw: A prosecutor’s impermissible assertion of his own credibility, or that of the government, to bolster the credibility of a witness. As we held in United States v. Gallardo-Trapero, “it is particularly improper, indeed, pernicious, for a prosecutor to seek to invoke his personal status as the government’s attorney or the sanction of the government itself as a basis for convicting a criminal defendant.” As the “power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says,”—here, that the agents were credible witnesses—all four of the prosecutor’s statements constituted error.
I'm out of my expertise in this area, but it doesn't seem all that clear to me. In "Statement One," for example, surely there's a difference between saying "I personally know this witness is credible" and simply using the adjective "credible" to describe his testimony. Likewise the argument in "Statement Two," that it's illogical to think a witness would have lied under the circumstances the evidence shows, would be pretty normal in a civil trial.
I ran a search and found a law review note, a little old but it reinforces my doubt. It's "Prosecutorial Misconduct," in the June 1998 "Criminal Procedure" issue of the Georgetown Law Journal. Footnote 1881 (you read that right; the footnote numbering in the issue seems to continue from one note to the next) collects vouching cases from the 1990s, and they're all over the map. The author cites the Seventh Circuit as holding that calling a witness an "honest citizen" isn't vouching (U.S. v. Morgan, 113 F.3d 85, 91 (7th Cir. 1997)), and the Sixth Circuit as holding that when a prosecutor argued that a detective would not risk his 18-year career by lying, the conviction would stand because the jury was instructed (as juries always are) that the lawyers' arguments were not evidence (U.S. v. Martinez, 981 F.2d 867, 871 (6th Cir. 1992)).