On Guard! Vouching Occurs in All Types of Cases.
by: Dsherbohug • August 12, 2012 • no comments
The prohibition against "vouching" applies in all cases-not merely child sex abuse cases.
In my first post , I explained how to properly object to the imposition of court-appointed attorney fees. The analysis contained in that post was recently approved in State v. Pendergrapht.
Next on the list of winning appellate issues that frequently go unpreserved is allowing a witness to comment on the credibility of either the victim or the defendant.
The law on this issue is clear. In Oregon, no witness may give an opinion on the credibility of another witness. State v. Middleton 294 Or 427, 438 (1983). That prohibition applies not only to comments on the truthfulness of another witness's testimony at trial, but also to comments on the credibility of another witness's out-of-court statements. State v. Lupoli, 348 Or 346, 354-54 (2010); State v. Keller, 315 Or 273, 278 (1993); State v. Milbradt, 305 Or 621, 626-27 (1988).
The Supreme Court has gone to great lengths to explain the rule to both the bench and bar. First, in Middleton, the court established a clear rule: "We expressly hold that in Oregon a witness, expert or otherwise, may not give an opinion on whether he believes a witness is telling the truth." 294 Or at 438.
Later, in Milbradt, the court reiterated the rule:
"We have said before, and we will say it again, but this time with emphasis - we really mean it - no psychotherapist may render an opinion on whether a witness is credible in any trial conducted in this state. The assessment of credibility is for the trier of fact and not for psychotherapists."
305 Or at 629.
The purpose of this post, however, is to remind our bar that the prohibition extends beyond psychotherapists and child sex cases. In those cases, the issue is generally at the forefront of everyone's mind, and the objection is less often missed. However, the rule applies to all witnesses (including police officers and the parents of the victim) and it applies to testimony bolstering the credibility of a witness ("vouching") as well as opinion testimony attacking it.
Often, especially in domestic violence cases, officers will arrive on the scene, separate the combatants, and take statements from each. At trial, defense counsel should not permit the officer to testify that "I believed the victim's account because..." or "I disbelieved the defendant's account because..."
State v. Lowell, 249 Or App 364 (2012), exemplifies the problem. In Lowell, the state accused the defendant of engaging in consensual sexual intercourse with a minor. Officer Staples interviewed the defendant prior to arresting him. At trial, the prosecutor asked the officer for his opinion regarding defendant's honesty during the interview:
"Q. Okay. So at this point, then, what was your impression about his honesty in the investigation so far? "A. I didn't think that he was being very honest and upfront. "Q. Okay. So what happened next? "A. At this time I * * * asked him again, you know, did you have sex with her, and he stated: I swear to God I didn't have sex with her. "To me that's an indication that somebody is not being truthful. I've gone to several classes on interview and interrogation and there are certain phrases that are said and that's one of the phrases of an indication if somebody is being less than truthful."
Id. 366-67.
Although the trial attorney failed to object, the Court of Appeals reversed on plain error review. The court concluded that the officer's testimony indisputably violated the prohibition against commenting on the credibility of a witness and agreed to exercise its discretion to correct the error because it considered the evidence particularly prejudicial:
"In a case that boiled down, in large part, to a credibility contest between the complainant and defendant, evidence commenting on the credibility of either was likely to be harmful. That the officer's testimony was couched in terms of his expertise in identifying untruthfulness-that he had attended "several classes on interview and interrogation" and, based on that training and experience, he could identify the phrasing used by defendant as indicating that defendant was lying when he denied having sex with the complainant-only increases the significant risk that the jury's verdict was affected."
Id. at 370.
Additionally, in both State v. Ferguson, 247 Or App 747, 754 (2012) and State v. Vargas-Samado, 223 Or App 15, 19-20 (2008), the court reversed convictions where prosecutors asked the parents of victims to vouch for their children.
In Ferguson, the prosecutor asked the victim's father:
"Q. Okay. So, if you * * * had thought [your 19-year-old daughter] had just made a mistake, got drunk, but had sex with somebody knowingly, would you have let the police be called? "A. Oh, no, sir. "Q. Okay. "A. I don't deal like that."
Id. at 752.
In Ferguson, defense counsel did object, but was overruled. The Court of Appeals reversed concluding that the father "indirectly vouched" for his daughter. Id. at 755. Additionally, the court concluded that the error was not harmless: "In this case, as noted, the victim's credibility was at issue before the finder of fact and the improper evidence may have colored the jury's consideration of that issue." Id.
Lastly, that rule applies to a defendant's statements even if the defendant does not testify, and likewise to the victim's statements even if the victim does not testify. The Court of Appeals' most recent decision on the issue explains:
"Lupoli stands for the principle that a witness at trial may not comment on the credibility of another person regarding statements made by the other person, even if the other person is not a witness at trial."
State v. Brooks, 247 Or App 676, 681-82 (2012).
Therefore, the issue is whether an actual trial witness has been asked to give his or her opinion on the credibility of another person's statements (usually the defendant's or the victim's) regardless of whether the other person actually testifies.
Because a defendant's statements can be elicited by the state as admissions of a party opponent, OEC 801 (4)(b)(A); and there are also hearsay exceptions for child victims, OEC 803 (18a)(b); as well as for victims of domestic violence, OEC 803 (26); there are scenarios where the factfinder may be tasked with assessing the credibility of out-of-court statements even when the declarant is not technically a witness. Thus, in those situations, the defense must be ready to object.
In sum, the current Court of Appeals understands this issue, agrees that commenting on the credibility of either the victim or the defendant is generally prejudicial, and is willing to reverse convictions if the rule is violated. So you should not feel any hesitation in confidently objecting if the state attempts to elicit such improper evidence.
