"Is the officer lying?"

This wikilog article is a draft, it was not published yet.

by: Ryan • November 12, 2015 • one comment

In today's COA opinion, State v. Abbott, the Court of Appeals held harmless the trial court's failure to sustain a number of objections to the prosecutor's questions to the defendant. One example would be: “So Officer Brennan took the stand and absolutely lied about the location of where he found that cash” ?

The court finds error, but it does so grudgingly. Or more precisely, it expresses the opinion that it's not sure why it's error.

The Isom court did not explain, beyond citing the general principle that one witness may not comment on the credibility of another, why that prohibition should apply to the type of questions that the prosecutor asked the defendant on cross-examination. As we explained in Corkill, the kind of question asked in Isom, in Corkill, and in this case—the quintessential “are the police officers lying” inquiry—does not seek to elicit “true vouching” evidence, like the evidence that the court had discussed in earlier cases that led up to Isom and which that opinion cites. See State v. Milbradt, 305 Or 621, 629-30, 756 P2d 620 (1988) (trial court erred by admitting a psychologist’s testimony that the complainant in a rape case was “not deceptive, could not lie without being tripped up, and would not betray” the defendant); State v. Middleton, 294 Or 427, 438, 657 P2d 1215 (1983) (in the context of allowing an expert to describe “the reaction of the typical child victim of familial sexual abuse,” also asserting that “a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth”). Accordingly, it is not immediately apparent why the holdings in those earlier cases led the Isom court to announce that the kind of cross-examination at issue here “will not be tolerated.” Moreover, that announcement was dictum, as the court reversed the Isom defendant’s conviction on other grounds.

In other words, we know the prosecutor didn't really want to know if the defendant thought the officer was lying. In fact, one can figure that the prosecutor would have been fine with any answer that was given. (A variation of the question was asked eight times, involving multiple witnesses.) Rather, he or she was using the question solely to make a point, not to elicit evidence.

It would be vouching if the question was sincere. But the question wasn't sincere.

Regardless of whether that should be disqualified as vouching, it's still improper. The objection to that line of questioning is "argumentative." While certainly as practitioners of the art of cross-examination, we ask questions that are designed to help us make our points. But we are not supposed to use the tools of cross-examination solely to score debating points. We must actually be attempting to elicit evidence.