Friday, April 04, 2008

Fifth Circuit apparently taken over by aliens, issues restraint on prosecutors "vouching" for law enforcement

At Deliberations, Anne identifies a beauty of a Fifth Circuit opinion in a Texas case laying down the law regarding what prosecutors can say in closing statements to bolster the credibility of police testimony. She writes:
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')."
I think most Fifth Circuit watchers will be shocked to learn, as Anne was, that the court's answer was "all four" statements amounted to vouching, and indeed constituted "reversible plain error," overturning the conviction! I quickly rushed over to the Texas District and County Attorney user forums, assuming they'd already be in a tizzy over the opinion, but apparently word hasn't filtered down to the front lines.

From readers with courtroom experience, how often do you hear prosecutors make statements similar to one or more of these four in closing arguments? They're certainly common enough in the political and rhetorical arena. Via Capital Defense Weekly.


Anonymous said...

No matter how someone gets into law enforcement, nobody good could can stay in long. The blinders will slip from the eyes within weeks or months.

Ergo, any seasoned law enforcement officer is a professionally trained, and practiced, liar.

Who doesn't know this?

Anonymous said...

That really is amazing. If the Deliberations post weren't dated April 2 I'd have taken it for an April Fool's joke!

Anonymous said...

I rather doubt that Texas prosecutors are particularly concerned with what a "federal court" has to say.

Gritsforbreakfast said...

Michael, you're right. I was told privately via email this only applies to federal rules of evidence, not state cases. Still surprised me, though.

Anonymous said...


"From readers with courtroom experience, how often do you hear prosecutors make statements similar to one or more of these four in closing arguments?"

Why don't you tell us your courtroom experiences with anything?

Anonymous said...

What does Grits' courtroom experience have to do with anything?

Anonymous said...

Where does the Fifth Circuit convene these days, post-Katrina? In not in New Orleans, maybe they are no longer drinking poisonous Mississippi River Water, and their brains are working differently.

It is unlikely that this opinion will be upheld by SCOTUS on appeal. At least one of those statements was clearly not vouching, under what has been the rule on such things.

Gritsforbreakfast said...

"Why don't you tell us your courtroom experiences"

I've not a lawyer, as you know, and have no "courtroom experiences" besides traffic court and an incident where I refused to divulge sources and got hauled into civil court.

But I've covered court cases as a journalist in a past life, and spent more time in county courthouses digging through case files than I could begin to describe as an oppo researcher, including in 22 judicial campaigns. Back then I'd also do similar paper trail research for attorneys, including several death penalty appeals. After that, I was ACLUTX's Police Accountability Project director for six years. Good enough, or do you think I need a J.D. to talk about this stuff?

Anonymous said...

#1: Clearly vouching.
#2: Vouching and a flat-out lie; unless the prosecutor just started work yesterday, he's had law enforcement witnesses get caught in lies on the stand - and he knows that in most cases they were neither prosecuted for perjury, nor disciplined by their department.
#3: Doesn't sound like vouching to me. Every lawyer is asking the jury to believe his witnesses.
#4: Without knowing the evidence presented, this could be expressing a line of reasoning from the evidence in the case - or just blowing smoke.