Asking the defendant if another witness was lying
by: Ryan • April 20, 2011 • no comments
Federal courts have repeatedly held that a prosecutor may not ask the defendant whether another witness was lying. United States v. Harrison, 585 F3d 1155, 1158 (9th Cir. 2009) (holding it was improper for the prosecutor to ask the defendant whether a government witness was lying); United States v. Combs, 379 F3d 564, 572 (9th Cir. 2004) (same); United States v. Geston, 299 F3d 1130, 1136 (9th Cir. 2002) (same); United States v. Sanchez, 176 F3d 1214, 1219 (9th Cir. 1999) (same).
It seems to me that a related issue is asking the defendant, regarding the complaining witness, "why would she lie?" Since answering the question with anything other than "I don't think she would" requires the defendant to implicitly adopt the opinion that she is lying, the question is just as improper, for the exact same reasons, as given in the cases above. (And the question is argumentative.) That said, I haven't looked up case law on the subject.
Are prosecutors asking defendants these questions?
Are there other questions that prosecutors usually ask on cross-examination of the defendant that you feel you should object to but aren't quite sure of the proper objection? Can't say that I will attempt an answer on this website, but for Oregon defense lawyers, there will be a conference on evidence again, and if we get enough interest in this topic, "improper cross of the defendant" might be a presentation topic.
