Search all cases and statutes...
JX
Search
§
Help
Witnesses - Bolstering / Vouching
Favorable and Noteworthy Decisions in the Supreme Court and Federal Appellate Courts
By Don Samuel
Garland, Samuel & Loeb, P.C.
Sep 1, 2015
United States v. Groysman, 766 F.3d 147 (2d Cir. 2014)
The Second Circuit reversed this health care fraud conviction on the basis of several
“egregious” evidentiary errors committed at trial. The defendant was charged with
conspiring with a company that supplied durable medical equipment to prepare false
invoices. The wholesaler was cooperating and taped many of the conversations,
though many were inaudible. The government offered testimony from its case agent
for several days at the start of trial. The agent (1) offered inadmissible bolstering
testimony by testifying that certain transactions occurred, based only on his
interviews of the cooperators – he had no personal knowledge to verify that these
transactions occurred; (2) offered a summary chart which was not a summary of
voluminous evidence, but simply a recitation of what he was supposedly told by the
cooperators, thus violating both the hearsay rules and the bolstering rules and the
rule governing the admissibility of summary charts; (3) the use of the agent to
summarize the case at the outset was improper because it amounted to opinion
testimony. The Second Circuit, as noted above, characterized these evidentiary
errors as egregious and supported a plain error standard of review reversal.
United States v. Hill, 749 F.3d 1250 (10th Cir. 2014)
After the defendant’s statement was played in court, the government called an
“expert” FBI agent who had training in determining if a person was being truthful or
not and he offered his expert opinion that the defendant was not being truthful.
Among other reasons, the agent found the defendant to lack credibility because he
said, “I swear to God” and other statements that showed that he invoked his belief
system, rather than relying on facts to support his protestations of innocence. The
Tenth Circuit held that this was reversible error even in the absence of an objection
by the defense attorney. Juries are tasked with making credibility decisions, not
government experts.
United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014)
The government is not permitted to introduce the portions of a cooperating
witness’s plea agreement that bolster the witness’s credibility (e.g., the witness
promises to tell the truth and will suffer consequences if he does not tell the truth
and will only receive the benefit of his bargain if he tells the truth), until the defense
challenges the credibility of the witness. Thus, assuming the defense does not
question the credibility of the witness during opening statement, the prosecution
may not raise the issue during the direct examination of the witness and the
prosecution may not bolster the credibility of the witness during the opening
statement.
United States v. Johnson, 529 F.3d 493 (2d Cir. 2008)
Sign In
Free Trial
The DEA agent’s testimony was replete with improper hearsay, opinion, vouching,
and argumentative testimony. The agent testified about the course of the
investigation, declaring, “We found out that . . .” and “We determined that . . .” The
agent related what co-conspirators told him when they were first arrested, to explain
what he did next in the investigation. He thenexplained what “corroboration” meant
and explained what he did and learned to corroborate what he was told by
informants and co-conspirators. He further explained that he was skeptical of what
informants told him until he corroborated what they said and he was then able to
ensure that the informants told him the truth. While it may be more interesting to a
jury to learn how the police conduct investigations, a substantial amount of this
testimony was inadmissible. Because defense counsel did not object, the plain error
standard applied and the Second Circuit held that the inadmissible evidence did not
meet this standard.
United States v. Brooks, 508 F.3d 1205 (9th Cir. 2007)
Testimony from witnesses about the various steps that were taken to secure a
wiretap amounted to a form of improper vouching or bolstering, particularly
testimony that judges had approved the wiretap applications.
United States v. Cunningham, 462 F.3d 708 (7th Cir. 2006)
A law enforcement officer testified about all the hurdles that were satisfied in order
to obtain a wiretap. This amounted to improper bolstering by implying to the jury
that numerous law enforcement officials and agents believed that the defendant was
guilty (and that there was probable cause to initiate the wiretap).
United States v. Harlow, 444 F.3d 1255 (10th Cir. 2006)
The prosecutor repeatedly referred to the judge’s role in reducing the coconspirators’ sentences, thus encouraging the jury to believe that the judge believed
the witnesses. This was error, but was cured by the judge’s instruction to the jury.
Earls v. McCaughtry, 379 F.3d 489 (7th Cir. 2004)
The defendant was charged with molesting a six-year old child. There were no
witnesses to the events and no physical evidence corroborating the child’s
statements. A social worker who interviewed the child and testified as an expert said
that she believed the child. This was inadmissible evidence and the attorney’s
failure to object amounted to ineffective assistance of counsel. In addition, during
the videotape of the child prepared by the social worker, the social worker told the
child that she believed her and the defendant should not have done that to her. The
attorney’s failure to redact the tape was ineffective assistance of counsel.
Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998)
Permitting an expert witness to testify that 99.5% of children tell the truth in child
abuse cases was a denial of fundamental fairness and in the circumstances of this
case, where the child's credibility was the central issue, required setting aside the
conviction.
United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998)
One agent was asked whether he thought another agent was telling the truth. The
agent whose veracity was in question was a critical witness relating to the charges in
the indictment (assault on a federal officer). Even though the agent/witness’s
veracity was challenged when he testified, the government erred by attempting to
rehabilitate him by asking another witness whether the challenged witness was
telling the truth. Reversible error.
§
Sign In
Free Trial
United States v. Dwyer, 843 F.2d 60 (1st Cir. 1988)
It was improper for the trial court to instruct the jury that “although an immunized
witness may not be prosecuted for past crimes revealed by his testimony, even an
immunized witness is subject to prosecution for perjury if he intentionally lies under
oath.” This amounts to a comment on the credibility of the unindicted coconspirator’s testimony which was given under a grant of immunity.
United States v. Forrester, 60 F.3d 52 (2d Cir. 1995)
A witness claimed that she told the agent about the defendant’s participation in the
drug conspiracy and also identified a photograph of the defendant for the agent. The
agent then testified that he did not remember the witness saying this, or identifying
the defendant. Nevertheless, when asked by the prosecutor, the agent gave his
opinion that nothing the witness said in court was inconsistent with her statement at
the time of the initial interview. The prosecutor claimed that this opinion testimony
was admissible “to aid the jury” under Rule 701. This was erroneous. Far from
being “helpful,” the agent’s testimony invaded the traditional province of the jury.
United States v. Fernandez, 829 F.2d 363 (2d Cir. 1987)
The credibility of a government witness was not challenged on cross-examination to
the extent justifying the admissibility of a cooperation agreement between the
government and a witness on re-direct examination. Only after a witness’s
credibility has been challenged is a plea agreement by that witness admissible. In
this case, the witness’s credibility was not sufficiently attacked to justify the
admissibility of her cooperation agreement.
United States v. DiLoreto, 888 F.2d 996 (3rd Cir. 1989)
The prosecutor vouched for the credibility of one of his witnesses, relying on
evidence that was not in the record. This is reversible per se. The prosecutor
explained to the jury that the government “does not put liars on the stand.” This
requires that the conviction be set aside. In a later opinion, the Third Circuit held
that, though it was error to make this argument, such errors are not to be considered
reversible per se.United States v. Zehrbach, 47 F.3d 1252 (3rd Cir. 1995).
United States v. Porter, 821 F.2d 968 (4th Cir. 1987)
It is error to admit into evidence a witness’ plea agreement which contains the
witness’ agreement to take a polygraph test to verify his trial testimony.
Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988)
It was improper for an informant to testify that he had been responsible for the
conviction of numerous other people.
United States v. Davis, 838 F.2d 909 (7th Cir. 1988)
A co-conspirator testified that three customers were convicted of offenses relating to
the marijuana distribution conspiracy about which she was testifying. This improper
bolstering testimony was harmless in this case.
Maurer v. Department of Corrections, 32 F.3d 1286 (8th Cir. 1994)
This trial pitted the defendant, charged with “date” rape against the alleged victim.
The only issue was who was telling the truth about the encounter in the defendant’s
trailer. The prosecutor asked each of the four prosecution witnesses (two of the
victim’s friends, and two law enforcement officers) whether the victim “seemed
§
Sign In
Free Trial
sincere when she said she was raped.” Thisvouching testimony rendered the trial
fundamentally unfair. The prosecutor asked these improper questions only because
it was important to bolster the victim’s credibility.
United States v. Cortez, 935 F.2d 135 (8th Cir. 1991)
The government offered the opinion testimony of two police officers that the
“snitch” was being truthful. While opinion testimony is admissible to support the
witness’s character for truthfulness, the opinions in this case were not based on any
foundation. Neither officer had spent a full day with the snitch and neither had
participated in the investigation of the snitch. The trial court abused its discretion in
admitting this testimony – though it was harmless error.
United States v. Azure, 801 F.2d 336 (8th Cir. 1986)
It is improper to permit an expert witness to testify that in his opinion there is no
reason why an alleged victim of child sex abuse was not telling the truth. It is
permissible for an expert to testify about a child’s ability to separate facts from
fiction, by summarizing medical evidence and giving an opinion as to whether that
evidence is consistent with sexual abuse; by discussing various patterns in child sex
abuse cases and comparing them with patterns in the case at bar. But that is different
from allowing an expert to state whether or not a witness is believable. The latter
constitutes an improper invasion into the province of the jury.
United States v. Rudberg, 122 F.3d 1199 (9th Cir. 1997)
The prosecutor repeatedly violated the rule against vouching for his witnesses. First,
he asked an FBI agent whether the agent determined that the witness was entitled to
a Rule 35 reduction in light of the witness’s substantial assistance, and the agent
affirmed that the witness was entitled to this benefit. Next, with regard to one
witness, the prosecutor elicited testimony that the witness had previously been
denied a Rule 35 because he left out some facts in his debriefing, but this time he
was being entirely truthful. Finally, the prosecutor explained to the jury in closing
argument that witness’s did in fact receive reduced sentences because of their
truthful testimony. Each of these instances amounted to improper bolstering and
vouching. The conviction was reversed.
United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996)
The prosecutor improperly bolstered the testimony of a government witness when
she argued in closing that the victim’s in-court testimony was consistent with what
she told law enforcement agents earlier. The witness’s prior consistent statements
were ruled inadmissible on hearsay grounds when they were offered at trial.
United States v. Kerr, 981 F.2d 1050 (9th Cir. 1992)
The prosecutor committed plain error in his closing remarks by repeatedly stating
that “he didn’t think” the witnesses were lying; and “he didn’t think the witnesses
were hoodwinking” the agents. Even absent objection, these comments necessitated
reversing the conviction. The only objection which was made – and was sustained –
was when the prosecutor suggested that the judge believed the witness in accepting
his plea agreement. The sustained objection, however, was not sufficiently forceful
and did not remove the taint of the improper argument.
United States v. Smith, 962 F.2d 923 (9th Cir. 1992)
The prosecutor’s closing argument amounted to plain error. The prosecutor argued
that his job was to present the truth to the jury and that he would prosecute anybody
for perjury who told a lie. He also stated that the court would not let him do
§
Sign In
Free Trial
anything wrong. He repeatedly statedthat his job was not to secure a conviction, but
only to present the truth and to turn over all favorable evidence to the defense.
Because the witness for whom the prosecutor was vouching was a critical witness
for the government, this was plain error – that is, reversible error, despite the
absence of a contemporaneous objection.
United States v. Simtob, 901 F.2d 799 (9th Cir. 1990)
While a government witness was on the stand, the prosecutor offered to immunize
the witness for any false statements he may previously have made. Because this
witness’s credibility was pivotal in the case, this constituted improper vouching for
the testimony of the witness and required reversal of the conviction.
United States v. Shaw, 829 F.2d 714 (9th Cir. 1987)
During opening statement, the prosecutor improperly stated that one of the
government’s witnesses was also facing a robbery charge but that the government
had agreed “that as long as he is truthful we will present his truthful cooperation to
the local prosecutor.” Obviously, during opening statements, this was not a response
to an attack on the witness’ credibility. The Ninth Circuit holds that the remark
“necessarily implied that the prosecution had some method of determining whether
the witness’s testimony was truthful, so that it will know whether to present the
witness’s ‘truthful cooperation’ to the local authorities.”
United States v. Eyster, 948 F.2d 1196 (11th Cir. 1991)
On cross-examination, a government witness indicated that certain counts of the
indictment to which he pled guilty were false – he was not guilty of the charges to
which he pled guilty. On re-direct, the prosecutor suggested that there was a
typographical error in the plea agreement and thus, the witness only pled guilty to
the charges which he was, in fact, guilty of. This re-direct was erroneous: there was
no typographical error. The prosecutor’s questions were based on evidence not in
the record and amounted to improper bolstering of the witness. This was reversible
error. In assessing whether this was grounds for reversal, the court noted that “the
government’s reference to a typographical error was ultimately an outright
falsehood designed to mitigate [the witness’] willful perjury.”
United States v. Sorondo, 845 F.2d 945 (11th Cir. 1988)
A law enforcement agent testified that the informant upon which he relied had
worked on a number of cases which led to the conviction of well over 100 other
defendants. The Eleventh Circuit holds that this is reversible error: “A jury had an
obligation to exercise its untrammeled judgment upon the worth and weight of
testimony and to bring in its verdict and not someone else’s.” Significantly, the
Eleventh Circuit concludes that this testimony constituted plain error. Although the
defendant had objected to this testimony, he had objected only on the grounds of
relevance which was not the proper objection.
United States v. Nanny, 745 F.Supp. 475 (M.D.Tenn. 1989)
During closing argument, the prosecutor referred to military police officers
(witnesses in this case) as “unbiased” and individuals who had “no reason to lie.”
The prosecutor also questioned the defense attorney’s challenge of the credibility of
these officers stating “I am a United States Army officer, I represent the
government.” These statements in closing arguments were prejudicial and
inexcusable. These statements of the prosecutor were “foul blows” and necessitated
a new trial.
§
Sign In
Free Trial
Read on gsllaw.com
Make your practice more
effective and efficient with
Casetext’s legal research
suite.
Get a Demo
§
Pricing
About us
Switch
Jobs
Big firm
Blog
Coverage
Podcast
SmartCite
News
Public records
Twitter
Partnerships and Resources
Facebook
Law school
LinkedIn
Bar associations
Instagram
Help articles
Customer support
Contact sales
Privacy
Terms
© 2022 Casetext Inc.
Casetext, Inc. and Casetext are not a law firm and do not provide legal advice.
Sign In
Free Trial