NO. 123456

THE STATE OF TEXAS	§		IN THE _____ DISTRICT COURT
§
V.	§		OF
§
JOHN DOE	§		____________ COUNTY, TEXAS

MOTION TO SUPPRESS IMPROPER PROSECUTORIAL CONDUCT
	(“Is another witness lying?”)
	Defendant submits that the trial court should not permit or condone any prosecutorial inquiry of and argument about the opinion of a witness as to the truth or falsity of other witness testimony.
	By asking that type of question, the prosecutor makes an improper and argumentative inquiry, illegitimately cross-examines outside of the rules of evidence, invades the province of the jury, injects a prejudicial matter that is irrelevant, improperly makes the testifying witness compare his testimony to that of another, places the testifying witness under the obligation to call "somebody a liar," may not ask for the opinion of a witness as to the truth or falsity of other testimony, and deprives accused of his federal and state constitutional presumption of innocence and due process rights to be heard, to have his testimony treated like any other witness, to present evidence in his behalf and to have a fair and impartial trial.  On those grounds, Defendant objects to this case's prosecutor asking questions herein similar to: 
1.	"Was officer mistaken in saying you had a strong alcoholic odor?"
2.	"Was officer wrong in talking about your incoherent speech?"
3.	"Is the state witness' contradictory testimony, fallacious?"
4.	"Is any specific witness lying?"
5.	"Are all witness except you lying?"
	Under Creech v. State, 168 Tex.Crim. 422, 329 S.W.2d 290 (1957), Defendant moves the court to enter an Order, prohibiting the State during direct or cross examination from propounding any improper question which because of testimonial discrepancies:
	1.	in effect asks:  "Is the state witness' contradictory testimony, fallacious?";
	2.	compares testimony of a previous trial witness with that of the testifying witness; and/or
	3.	calls for the testifying witness to decide whether a previous trial witness was testifying in this case truthfully or untruthfully.

SUPPORTING MEMORANDUM

	In Creech, supra at 291, the Court said:

	"The appellant, testifying in his own behalf, stated that he had had nothing to drink on the night in question, that he had demanded a blood test after his arrest, and that the same had been refused.  He stated that the officer was in error in his testimony as to the place of arrest.  On cross examination the appellant was asked if, because of the above discrepancy in their testimonies, he would say that the officer was lying, and he answered in the affirmative.  Appellant stated further that he was not a resident of the county where the prosecution was had.

	"Other officers were called in rebuttal and testified that the appellant smelled of intoxicants the following morning.

	"The sufficiency of the evidence is not challenged and we hold it sufficient to support the verdict.

	"Bill of exception No. 1 complains of the refusal of the trial court to permit the appellant to call four witnesses to prove that his reputation for truth and veracity was good.

	"Branch's Ann.P.C. 2d Ed., sec. 206, pp. 232 and 233, sets forth two rules, both of which are supported by authority.  They are as follows:

1.	`If the witness is in the situation of a stranger and is assailed on cross-examination by questions attacking his credibility and tending to bring him into disrepute before the jury, he may be sustained by proof of his general reputation for truth.'

2.	`Proof of the general reputation of defendant or of any other witness for truth is not admissible where no attack has been made on the witness, but there is a mere contradiction between witnesses, or confusion in the statements of the witness.'

"We must determine under which rule the case at bar fall."

	*****

	"In the case at bar we have merely the conflict in the testimony of the officer and the appellant as to the request for the blood test and the place of arrest.  The question propounded on cross-examination was improper.  However, when the appellant said that the officer was lying, he was merely saying that his version of the affair was correct and that of the officer incorrect.  We see nothing in such answer which would tend to bring him into disrepute with the jury.  See Rodriguez v. State, Tex.Crim, 305 S.W.2d 350 (1957).

FIRST ARGUMENT
	The question is not whether or not defendant will be harmed or injured before the jury by his/her being forced to testify that the officers were mistaken.  
	Regardless of the conflicting testimony, the question is whether a prosecutor commits error by inquiring of defendant:  "Is the state witness' contradictory testimony, fallacious?"
	In Streff v. State, 890 S.W.2d 815, 819-821 (Tex.App.-Eastland 1994, no pet.), the court found this "lying" error harmless, for given the contradicting testimonies, beyond a reasonable doubt, the single question made no contribution to either the conviction or the punishment.  See Tex.R.App.P. 81(b)(2); Harris v. State, 790 S.W.2d 568, 587 (Tex.Crim.App. 1989). 
	In Ayala v. State, 352 S.W.2d 955 (Tex.Crim.App. 1962), a question propounded to an accused, "In other words, the officers were mistaken when they say that you had a strong odor of intoxicating beverage coming from your mouth,"could not have injured defendant before the jury though defendant answered the officers were mistaken, after three officers described his numerous symptoms of intoxication before defendant testified as to drinking no alcohol.      
	In Salcido v. State, 342 S.W.2d 760 (Tex.Crim.App. 1961), it was held that overruling the defendant's objection to a question asking him on cross-examination whether a witness to the contrary had told the truth was harmless error, even though the objection should have been sustained.
	In Creech v. State, 329 S.W.2d 290 (Tex.Crim.App. 1959), a question propounded to an accused under similar conflicting testimony, as to whether he would say an officer was lying, was held not to be prejudicial to him in a DWI case.
	In Reyes v. State, 741 S.W.2d 414, 420-423 (Tex.Crim.App. 1987), the court found the error harmless but held the prosecutor should not have been allowed to read the perjury statute to the defendant in the presence of the jury.  That Reyes court also said:

	It is well established that the scope of cross-examination is subject to the sound discretion of the trial court.  (Citations omitted.)  

	And where there is an irreconcilable conflict between the testimony of the prosecution and the testimony of the defendant, considerable latitude should be allowed in cross-examination of the defendant.  (Citation omitted.)
	It is well established that when a defendant in a criminal case voluntarily takes the witness stand in a trial on the merits on his behalf he occupies the same position and is subject to the same rules as any other witness.  He may be contradicted, impeached, discredited, attacked, sustained, bolstered up, made to give evidence against himself, cross-examined as to new matter, and treated in every respect as any other witness, except where there are overriding constitutional or statutory provisions.  (Citations omitted.) 

 	"Thus, when an accused voluntarily elects to so testify he subjects himself to any legitimate cross-examination within the rules of evidence."  Bustillos v. State, 464 S.W.2d 118 (Tex.Crim.App. 1971).

	And when the defendant testifies he puts his credibility into issue, Hughes v. State, 92 Tex.Cr.R. 650, 245 S.W. 440 (App. 1922), and that credibility may be attacked.  (Citation omitted.)

SECOND ARGUMENT QUOTES THIS BELOW ARTICLE

RICO Report contained in NCDLA's The Champion p. 55 (December 2004)

Some Prosecutors Just Don't Get It: Improper Cross and Vouching
By Barry Tarlow

	The abuses that accompany excessive prosecutorial zeal are no surprise. Experience has demonstrated that judicial “tongue-clicking” is not a solution. See generally United States v. Agee, 597 F.2d 350, 371 (3d Cir. 1979) (Gibbons, J., dissenting) (deriding “tongue-clicking”); United States v. Serubo, 604 F.2d 807, 817–18 (3d Cir. 1979) (same); United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir. 1946) (Frank, J., dissenting) (“If we continue to do nothing practical to prevent [prosecutorial mis]conduct, we should cease to disapprove it . . . . Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking.”). 

	One would assume that reversals for prosecutorial misconduct would send a loud and clear message. Strangely enough, reversals and strong admonishments at times have failed to curb improper practices. This pattern of behavior reinforces the wisdom set out by Justice Jackson that the greatest danger to individual rights and liberties is from a misguided zealot in search of a righteous cause. See generally Harris v. United States, 331 U.S. 145, 198 (1947) (Jackson, J., dissenting) (“In view of the readiness of zealots to ride roughshod over claims of privacy for any ends that impress them as socially desirable, we should not make inroads on the rights protected by this [Fourth] Amendment.”); see also The Supervisory Power to Dismiss: An Essential Solution to the Problem of Prosecutorial Misconduct, 20 CACJ Forum at 18 (Dec. 1993) (“Potentially the most powerful deterrent to prosecutorial wrongdoing is the trial and appellate courts’ exercise of their inherent supervisorial power to dismiss a case.”). 

	A common prosecution cross-examination tactic is to attempt to force the accused to evaluate the truthfulness of testimony previously presented by the agents or other citizen witnesses. After the defendant declares that one or more prosecution witnesses has testified falsely, the prosecution often exacerbates the impact of the improper cross-examination by vouching for the credibility of its witnesses during closing argument. Both of these tactics amount to misconduct. With them, prosecutors cross the line of aggressive advocacy and become partisans. They are fundamentally unfair, but  they unfortunately occur far too often. Indeed, perhaps the reason that these types of, errors occur so often is that improper prosecutorial cross-examination and vouching have been so widespread for so long that many defense lawyers and judges have become conditioned to believing they are appropriate. 
	Since some trial courts respond to these tactics with no more than tongue-clicking, the ultimate question is, When does this type of improper cross-examination with or without vouching invalidate a conviction? In the past few years the Ninth Circuit, along with its sister circuits, has taken a stronger stand against this cross-examination tactic and prosecutorial vouching. In 1999, a panel reversed the conviction in United States v. Sanchez, 176 F.3d 1214 (9th Cir. 1999), and a year later United States v. Henke, 222 F.3d 633 (9th Cir. 2000) was decided. Both cases concluded that it is improper for a prosecutor to force a defense witness to evaluate the truthfulness of another witness’s testimony. 

	One would have thought that prosecutors surely would have gotten the message. Surprisingly, the recent decision in United States v. Combs, 379 F.3d 564 (9th Cir. 2004) — reviewing a trial that began about two years after Henke — involved even more egregious tactics than those condemned in Henke. In Combs, the same type of improper cross-examination took place, but this time it was combined with prosecutorial vouching. The panel concluded that each of these errors was so obvious and prejudicial as to provide an independent basis for reversal. 

	The opinion provides a backdrop for reviewing recent developments in response to these two types of prosecutorial overreaching, as well as the applicable standards of review. 

Catching the Good Guys in Combs

	After an eighteen-month investigation into the activities, books and records of Dale Roy Combs, DEA agents found nothing. But that didn’t save the 50-year old machine shop owner from prosecution. Combs had earlier refused to post bail for an employee, Earl Floyd. Bearing a grudge, Floyd sold him two oil drums and also became an informer. When Combs wanted to dispose of the barrels a few months later, he asked Floyd to do it and to wipe the drums clean. The employee promptly took the barrels to law enforcement officers. Although the DEA agents found nothing but oil in one barrel, they claimed they found trace amounts of unusable methamphetamine, plastic tubing and broken glassware in the other barrel. 

	Strangely, the agents did not preserve the evidence for the trial. They waited more than a year to arrest Combs and to charge him with making and distributing methamphetamine. United States v. Combs, 379 F.3d at 566. When they finally interviewed Dale Combs, he admitted that he knew one barrel contained methamphetamine waste, that he had earlier paid the employee to dispose of the waste and that he could purchase the materials necessary to make methamphetamine. According to DEA Special Agent Kent Bailey, Combs also admitted to manufacturing the drug, but Combs vigorously denied ever making the statement. No one else was present during the comment. The only similar testimony came from a jailhouse informer who of course received a deal in his own case in exchange for the testimony. 

	Given the lack of physical and documentary evidence and the motives of the informers to lie, the case boiled down to a credibility contest between Dale Combs and Agent Bailey. Combs testified that he did not admit to making any drugs, that in fact he never made or used illegal drugs and that all the methamphetamine waste came from an old laboratory run by his brother, who had been convicted two years earlier. 

	On cross-examination, the prosecutor asked, Hadn’t Combs admitted the crime to Agent Bailey? Combs denied making this statement. The AUSA then asked, “So are you saying that Special Agent Bailey is lying in his testimony?” Id., at 567. Without objection, Combs said yes, the agent was lying. Not satisfied, the prosecutor pressed the same issue. In response, Combs insisted that the agent’s typed summary of the statement did not accurately reflect Combs’s words. Judge Nora M. Manella — an extremely bright and ordinarily well prepared judge who apparently had not read this portion of the Henke opinion — then jumped into the act. She instructed Combs not to veer from the question, insisting that he discuss only Bailey’s testimony. Combs remained steadfast that Agent Bailey was lying. 

	In the closing arguments, the issue arose yet again. Perhaps sensing the weakness of her case, AUSA Cheryl O’Connor Murphy vouched for the credibility of her key witness in closing argument — at first subtly and then outright. Speaking to the jury, she said, “The defendant claims Special Agent Bailey is lying. Ask yourselves, ladies and gentlemen, who has the motive to lie here, the defendant or Special Agent Bailey . . . ?” Id. The jury probably had little trouble answering that question. In response, Combs’s counsel argued that Agent Bailey surely had a motive to lie, saying “you don’t keep getting [job] promotions when you go into homes or business establishments after an 18-month investigation and you find nothing.” Id., at 568. In rebuttal, the prosecutor vouched for her witness: 

	Most of all, ladies and gentlemen, you have to believe that Special Agent Kent Bailey is a liar. If you believe the defendant’s version of events, you have to believe that Special Agent Kent Bailey walked up to that witness stand, swore to tell you the truth, and perjured himself. . . . [Y]ou can be darn sure that he would get fired for perjuring himself. Id. No objection was made to any of these comments. 

Between a Rock and a Hard Place: Cross-Examinations Requiring A Charge of Lying 

	In this case, not only the prosecutor was at fault. Defense counsel did not object, and the trial judge facilitated the improper cross-examination. At least under federal law, the error should be obvious. The Combs court emphatically reiterated that a prosecutor engages in misconduct by forcing a defendant to call a testifying government agent a liar. The same result had been reached in United States v. Sanchez, supra, 176 F.3d 1214, and later in United States v. Geston, 299 F.3d 1130 (9th Cir. Cal. 2002), as well as in cases in other circuits. See United States v. Sullivan, 85 F.3d 743 (1st Cir. 1996); United States v. Boyd, 54 F.3d 868 (D.C. Cir. 1995); United States v. Richter, 826 F.2d 206 (2d Cir. 1987). For a more thorough review of the latter three cases, as well as the state court decisions that differ, see Can a Prosecutor Ask a Defendant on Cross If a Witness is Lying?: RICO Report, The Champion (Jan./Feb. 2002). 

	The decision as to whether a defendant should testify is at times extremely difficult. See Wilson v. United States, 149 U.S. 60, 66 (1893) (“It is not everyone who can safely venture on the witness stand, though entirely innocent of the charge against him. Excessive timidity, nervousness when facing others and attempting to explain transactions of a suspicious character, and offenses charged against him, will often confuse and embarrass him to such a degree as to increase rather than remove prejudices against him. It is not everyone, however honest, who would therefore willingly be placed on the witness stand.”). 

	The process puts the accused at the risk of enduring a potentially embarrassing, unnerving and manipulative attempt to distort testimony, recollection, personal background and often the facts of the case. In addition, a defendant faces the one-strike rule. Unlike the manner in which jurors evaluate the testimony of almost any other witness, one meaningful mistake is all that is required for a jury to conclude the defendant is lying and must be guilty. The decision to testify would be even more perilous if the defendant faced a cross-examination in which the prosecutor could require him to judge the credibility of pieces of testimony offered by other witnesses — especially government agents. The convenient argument then becomes, Everyone is lying except the defendant, and who else has a better motive to lie? 

	Prosecutorial misconduct, in this situation, is not limited to staging credibility contests between testifying defendants and government agents. This type of cross-examination is improper and misconduct when a civilian witness is involved. See United States v. Sullivan, 85 F.3d at 750 (“The rule [barring this type of cross-examination] only applies, the prosecution says, when the other witness is a police witness, not a lay witness. We make no such distinction, nor does the Second Circuit.”). 

	In United States v. Henke, 222 F.3d at 635, for example, corporate executives were charged with securities violations, including securities fraud, insider trading, making false statements to SEC investigators and conspiracy. The trial became a credibility contest between the defendants and other executives as to just what the defendants knew about a false revenue reporting scheme and when did they know it. During cross-examination, the government forced one defendant, Chief Executive Officer and Chairman of the Board Chan Desaigoudar, to say the prosecution witnesses were lying. The panel found this to be an error that must not be repeated upon retrial. See Can a Prosecutor Ask a Defendant on Cross If a Witness is Lying?: RICO Report, The Champion 58–59(Jan./Feb. 2002). 

	A more colorful example arose in United States v. Sanchez, supra, 176 F.3d 1214. There, a couple, Steve Denton and Dana Jo Thompson, became fugitives when agents sought to arrest them for attempting to manufacture methamphetamine. When they were caught, it was business as usual. They received leniency in exchange for rolling against Charles Sanchez and the other people accused of helping them avoid apprehension. Denton became the AUSA’s key witness. The prosecution essentially asserted that the couple was only able to stay on the lam because Sanchez bought methamphetamine from them and occasionally drove them around. Only Denton said that Sanchez knew of his fugitive status. None of the other witnesses testified that Sanchez had any knowledge of that status, and there was no other significant evidence of knowledge. 

	Guilt or innocence largely turned on whether the jury believed Sanchez or Denton. Among the tactics used to attack Charles Sanchez’s general credibility, the AUSA forced him to call a local police officer a liar in connection with a tangential issue; namely, whether Sanchez had told an officer that he did not know or recognize a photograph of Denton. The purported a statement was previously unreported by the police officer and, even if it occurred, it was consistent with Sanchez’s repeated assertions that he suspected Denton of simply having violated the drug restrictions of his parole. On appeal, the panel concluded that even this forced accusation of lying on a minor matter was prosecutorial misconduct. 

	This type of cross-examination is improper even if a defense witness other than the accused is involved. Just two years ago in United States v. Geston, supra, 299 F.3d 1130, a Ninth Circuit panel found yet a year after Henke that an improper cross-examination required reversal in a case where credibility was important. There, a Department of Defense police officer was accused of using unreasonable force and committing assault with a dangerous weapon ( his police baton) in arresting a drunk naval seaman apprentice. The witnesses vigorously disputed the facts of the arrest, which bore critically on the reasonableness and self-defensive character of the officer’s actions. These other officers who were present at the arrest and assisted in it testified. Petty Officer William Garrett and another Petty Officer Groot described the purported victim’s aggressive behavior, provocation of the use of force and unwillingness to submit to arrest. Other officers differed in their memories of the particular details of the incident. During Groot’s cross-examination, the prosecution persistently asked whether a prosecution witness was lying. Similarly the prosecution forced Officer Garrett to comment on the truthfulness of Groot and other witnesses, as well as to opine whether their recollections were “mistaken.” Id., at 1136. 

	Rejecting this cross-examination tactic, the Ninth Circuit concluded, “[i]n a case where credibility was paramount, it was plain error for the court to allow the prosecutor to persist in asking witnesses to make improper comments on the testimony of other witnesses.” Id., at 1137. It is sufficient to cause a reversal, therefore, that one defense witness is required to call another witness a liar where credibility is critical. See United States v. Sullivan, 85 F.3d at 750 (“counsel should not ask one witness to comment on the veracity of the testimony of another witness”). 

	The basic rationale for the rule is that the jury is in the best position to determine a witness’s credibility and, indeed, it has the right to do so. “The [Supreme] Court has said: ‘The jury [are] the judges of the credibility of the witnesses * * * and in weighing their testimony [have] the right to determine how much dependence [is] to be placed upon it.” Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 628 (1944) (quoting Aetna Life Ins. Co. v. Ward, 140 U.S. 76, 88 (1891)), cited in United States v. Richter, 826 F.2d at 208. Determinations of credibility “belong[ ] to the jury, who are presumed to be fitted for it by their natural intelligence and their practical knowledge of men and the ways of men; and, so long as we have jury trials, they [generally] should not be disturbed in it . . . .” Sartor v. Arkansas Natural Gas Corp., 321 U.S. at 628. Following this logic, the Richter panel reaffirmed that “[d]eterminations of credibility are for the jury,” 826 F.2d at 209, where a prosecutor forced an accused to comment on the truthfulness of an agent who attributed inculpatory statements to him. Likewise, the Boyd court echoed that this improper examination format “infringed on the jury’s right to make credibility determinations,” where a prosecutor asked the accused why the police would fabricate a story contradicting his own. United States v. Boyd, 54 F.3d at 871. It is not the place of a witness “to draw conclusions about or cast aspersions” about another witness’s truthfulness. United States v. Sullivan, 85 F.3d at 746. The question of whether a government witness is lying is quite clearly for the jury, not the judge or the parties, and it is error for the prosecutor to force a defense witness to comment on the subject. 

	Some judges have difficulty seeing what is so prejudicial about asking the defendant whether an agent is lying when, for example, the testimony of two witnesses as to a purported event is in direct contradiction. See, e.g., State v. Hart, 2000 MT. 332, 303 Mont. 71, 57 Mont. St. Rep. 1398 (2000) (concluding that decision as to whether to permit such questioning is within the discretion of the trial court); Fisher v. State, 736 A.2d 1125, 1163 (Md. Ct. Spec. App. 1999) (stating that when prosecutor forced one defendant to call other witnesses liars, “cross-examination was doing exactly what cross-examination is designed to do”; namely, ferreting out lying). They seem to believe that prosecutorial questions do not really unfairly impinge on any of the jury’s power to determine credibility. Relying on these ideas, and as discussed in Can a Prosecutor Ask a Defendant on Cross If a Witness is Lying?: RICO Report, The Champion 59 (Jan./Feb. 2002), some state courts have refused to impose a categorical ban on this sort of questioning. The rationale of their opinion is: Somebody’s obviously lying, so what’s the harm in asking? 

	One response to that question is to ask, If the contradiction is already obvious and the jury can assess credibility, what’s the benefit in asking? What does the prosecutor gain by pressing the issue? One obvious advantage plays on human psychology. There is a difference between being sincerely, even woefully ignorantly wrong, and lying — intentionally misrepresenting something. To err is human; to intentionally foul things up is not so forgivable. Jurors recognize the difference even when no one articulates it. It’s akin to the sentiment motivating the tone of President Clinton’s “Difference of Opinion” speech to the Democratic National Convention this year. Undecided voters are much more likely to believe that Republican policies are simply, albeit sincerely, mistaken than to believe that Republicans are conniving or mean-spirited or that there’s some “right-wing conspiracy.” The Democrats and Republicans can’t both be right on a given issue, but when the race is close, if you call your opponent a liar, you’re bound to lose some votes. People can accept that the others like them make sincere mistakes more easily than they can accept that others like them are deliberately lying. 

	It is a small linguistic step, but it conceals a huge psychological leap. To the jurors, the accused is often presumptively the “other,” not “like them” and thus harder to trust. For a federal defendant, moreover, the case is at best a close race and often a nearly unwinnable uphill battle. Third, the government brings to its agents and even to many witnesses an often undeserved yet widely recognized air of sincerity, if not authority and righteousness. In this context, forcing a defendant or a defense witness to call the opposition a liar can easily create the obstacle that makes or breaks the case. The prosecutor knows it, and a number of appellate courts have recognized the problem. 
	This tactic is even more damaging when prosecutors use it to confuse the issue. Sometimes, credibility should not cut to the heart of a factual matter in dispute, as in cases involving eyewitness identification. In these cases, the real question is often the accuracy of the witnesses’ observations, not the witnesses’ truthfulness. Eyewitnesses are often viewed as being independent and perhaps mistakenly a generally reliable form of evidence. When their testimony has been presented, the prosecution at times prefers to cast these cases as credibility contests, trying to force the accused to call the eyewitness a liar and hoping that the jury will focus on credibility rather than the reliability of the identification. In this type of case the misconduct is far more egregious. 

Vouchers and Endorsements 

	Combs involved not only improper cross-examination, but also the troubling practice of prosecutorial vouching. Prosecutorial vouching is not only unfair, it is downright improper (whether or not it is reversible). After all, how does the prosecutor ever know if a witness is telling the truth? 

	Prosecutors like to trumpet the truthfulness-provisions that they insert as boilerplate language in plea agreements, and this provides a powerful argument. Prominent New York attorney Jay Goldberg refers to this as the “Sword of Damocles” argument. AUSAs frequently say they have the authority to send the informer to jail forever if he lies, so why would an informer not be truthful? See United States v. Cho, Case No. 96-1608 (2d Cir. May 23, 1997) (discussed below). In reality, however, these provisions do not effectively produce truthful testimony. Federal informers are almost never prosecuted for lying in a way that helps the prosecution. In addition, the motivation for lying is quite simple: If the informer cannot produce incriminating evidence, he will not get the deal. 

	A Massachusetts court has identified this problem with the “Sword of Damocles” argument. In Commonwealth v. Meuse, 423 Mass. 831, 833 (1996), a prosecutor argued to the jury that state troopers were able to tell whether an informer was telling the truth and could force him to do so pursuant to a plea agreement. However, the Supreme Judicial Court of Massachusetts rejected the argument and created one of the better solutions to this problem. The court concluded that “[w]hen a prosecution witness testifies pursuant to a plea agreement containing a promise to tell the truth, and the jury are aware of the promise, the judge should warn the jury that the government does not know whether the witness is telling the truth.” Id., at 832. When the prosecutor also vouches for the witness, the instruction is mandatory. Id.

	In the Ninth Circuit, as in most other jurisdictions, it is well settled that “[a]s a general rule, a prosecutor may not express . . . his belief in the credibility of government witnesses.” United States v. Molina, 934 F.2d 1440, 1444 (9th Cir. 1991). “Vouching consists of placing the prestige of the government behind a witness through personal assurances of the witness’s veracity, or suggesting that information not presented to the jury supports the witness’s testimony.” United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993) (summarizing numerous vouching cases), quoted in United States v. Leon-Reyes, 177 F.3d 816, 821 (9th Cir 1999). Accordingly, when the prosecutor in Combs stood up and basically asserted that Agent Bailey wouldn’t put his job on the line to concoct a confession and win the case (an argument that history has demonstrated to be patently invalid), she clearly threw both her and the officer’s official authority behind his testimony. This erroneously led the jury to the natural conclusion that any gap in the evidence at trial must be filled by other facts known to the government. 

	The dangers that prosecutorial vouching creates are familiar. When we last discussed the problem in Expert Witnesses and Prosecutorial Vouching: New Frontiers in ‘Soft Expert’ Testimony: RICO Report, The Champion (Sept./Oct. 1997), we noted how vouching abuses the trust that people place in government officers, including prosecutors. As the Supreme Court concluded in Berger v. United States, “It is fair to say that the average jury, in a greater or less degree, has confidence that the[ ] obligations [to serve as a representative of an impartial government and to see that justice is done] . . . will be faithfully observed [by a prosecutor]. Consequently, improper [prosecutorial] suggestions, insinuations and, especially, assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.” Berger v. United States, 295 U.S. 78, 88 (1935), overruled on other grounds by Stirone v. United States, 361 U.S. 212 (1960). More recently, in United States v. Young, 470 U.S. 1, 18–19 (1985), the Court said, “such comments can convey the impression that evidence not presented to the jury, but known to the prosecutor, supports the charges against the defendant and can thus jeopardize the defendant’s right to be tried solely on the basis of the evidence presented to the jury; and the prosecutor’s opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government’s judgment rather than its own view of the evidence.”

	Prosecutorial vouching is just part of a larger problem. As provided by ABA Rule 3.4(e), “[a] lawyer shall not . . . in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to . . . the credibility of a witness . . . or the guilt or innocence of an accused . . . .” ABA Ann. Mod. R. Prof. Cond., R. 3.7 (4th ed.); id. Legal Background, at p. 339 (citing Harne v. Deadmond, 954 P.2d 732 (Mont. 1998) (“defense counsel’s improper actions in civil case — personally vouching for credibility of client in closing argument — constituted reversible error”); see generally Bennett L. Gershman, Prosecutorial Misconduct §§ 10: 45–10:48 (2003 ed.) (discussing ways that a prosecutor’s comments essentially become improper testimony). 

	Viewed from a different perspective, vouching presents a compound problem. When a lawyer vouches for the truthful character of a witness, cloaking statements as argument, it really and essentially does one of two improper things. The attorney is attempting either to provide expert opinion testimony without saying so, and expert “opinion evidence regarding a witness’ credibility is inadmissible,” United States v. Sanchez-Lima, 161 F.3d 545, 548 (9th Cir. 1998) ; United States v. Awkard, 597 F.2d 667, 671 (9th Cir. 1979)), or to implicitly testify as to facts not otherwise in evidence. In either case, the testimony is improper. Lawyers generally are ethically prevented from being witnesses in the cases they litigate, see ABA Ann. Mod. R. Prof. Cond., R. 3.7 (4th ed.), and such testimony, when necessary, can force withdrawal from a case, see ABA Ann. Mod. R. Prof. Cond., R. 3.7 (4th ed.) R 1.116(a)(1). Therefore, when a lawyer vouches for the credibility of a witness, the vouching essentially — if not technically — breaks three rules: one that outright bans vouching, another preventing the admission of certain opinion testimony and still another against admitting attorney testimony. 

	Why is vouching improper for any attorney? The reason for the outright ban on vouching is that “[t]he procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties. Fair competition in the adversary system is secured by prohibitions against . . . improperly influencing witnesses.” ABA Ann. Mod. R. Prof. Cond., R. 3.4 Comment, at p. 331. The reason for the second rule proscribing most expert opinion testimony as to credibility again relates to goal of preserving the jury’s power to determine credibility, as discussed above. The last rule against advocate-witnesses serves to “eliminat[e] confusion over the lawyer’s role. The confusion could prejudice one or more of the parties or call into question the impartiality of the judicial process itself. . . . The very fact of a lawyer taking on both roles will affect the way in which a jury evaluates the lawyer’s testimony, the lawyer’s advocacy, and the fairness of the proceedings themselves.” ABA Ann. Mod. R. Prof. Cond., R. 3.7 Legal Background, at p. 362. The ban on attorney vouching is essential to promote the fairness of the legal process and to prevent a trial  from becoming — to paraphrase Robert Frost — a contest to determine who has the more credible lawyer. Obviously, in the case of prosecutorial vouching, the dangers of ordinary attorney-vouching are amplified by two considerations. The first is that an AUSA invokes the extra authority and prestige of the United States government. The second is that life and liberty are at stake in the prosecutor’s gamesmanship. 

	The argument is more than that vouching should undermine a conviction because we are picky about process. After all, what’s the point of all this fair competition and of adversarial roles? It is important to remember that behind the process lies a deeper concern; namely, truth, as established under constitutionally mandated burden of proof. And for all our haste to get to the bottom of things (which unfortunately is what courts seem to think they’re doing when they disregard instances of vouching), there simply is no shortcut past an insistence upon proper truth-seeking procedures. 

	The problem is that, like all advocates, prosecutors often believe they know what’s true. Judges by and large are convinced they know what’s true. And on a good day, the jury is pretty sure it knows what’s true. But everyone can’t be right, and by the time of trial, most of the participants have become distanced from the event in question — if only by the passage of time and the problems of memory and the preservation and use of evidence. So how do we best determine that the truth has been established in accordance with constitutionally imposed burdens? Emphatically, appeals to authority are notoriously poor truth-seeking devices. A lawyer who resorts to vouching is at best careless and at worst nothing more than a person who has too little good evidence of what really happened to take the high road. This is, in reality, resorting to the road to winning, confusing it with the other path. In the reality of after-the-fact litigation, a failure to guard the fairness of the procedures is a failure to maintain a concern for the appropriate outcome. 

	The American legal system accounts for our inability to know what actually happened by incorporating the various burdens of persuasion. Because life and liberty are at stake, courts must not permit convictions unless the prosecutor can prove the case beyond a reasonable doubt. When prosecutors resort to tactics like improper cross-examination and vouching, however, they are lowering the bar and distorting the burden of proof. As if the defendant is not already sufficiently disadvantaged merely by being accused, the prosecution uses these improper tactics either to make the accused look worse in front of the jury or to make the prosecution witnesses look good, regardless of the truth. 

	The question should always be, Has the prosecutor established the case beyond a reasonable doubt? When the defendant is forced to evaluate the credibility of a witness who provides incriminating evidence, the jury becomes focused on a different issue; namely, whether the defendant or the witness is testifying truthfully. In this type of case, reaching a decision by resolving the credibility issue permits the jury consciously or subconsciously to apply a standard different than reasonable doubt. 

	This type of disregard for the truth and a person’s actual innocence is symptomatic in cases involving prosecutorial misconduct. For example, a report issued by the Los Angeles County Grand Jury on June 26, 1990 showed how prosecutors’ and investigators’ systematic misuse of jailhouse informers caused wrongful convictions in as many as 250 major felony prosecutions between 1979 and 1988. Testimony that prosecutors generally knew to be perjury put innocent people behind bars. More generally, in a substantial portion of the cases wherein people have definitively proven their innocence — including capital cases — the prosecutor procured the wrongful conviction with tactics amounting to misconduct. See Bedeau, Radelet, and Putnam, In Spite of Innocence (Northeastern University Press, 1992); Rosenbaum, Inevitable Error: Wrongful New York State Homicide Convictions, 1967–88, 18 N.Y.U. Rev. L. & Soc. Change 807, 809 (1990–91) (report of New York State Defenders Association’s Wrongful Conviction Study Project, documenting 59 wrongful homicide convictions in New York between 1965 and 1988, “a substantial number of [which] . . . resulted from prosecutorial misconduct . . . includ[ing] . . . suppression of exculpatory evidence and the conscious use of perjured testimony.”). 
	Since prosecutorial misconduct is responsible for so many wrongful convictions, the need to uphold the purposes of the various rules becomes even more important, and this should inform how trial and appellate courts treat the issue of prosecutorial vouching. In short, it should result in a mistrial or a reversal far more often than it actually does. 

Prejudice, Prosecutorial Pride and Reversal 

	When should improper cross-examination tactics and-or prosecutorial vouching result in a reversal? After all, “a criminal conviction is not to be lightly overturned on the basis of a prosecutor’s comments standing alone, for the statements or conduct must be viewed in context; only by so doing can it be determined whether the prosecutor’s conduct affected the fairness of the trial.” United States v. Young, 470 U.S. at 11. 

	As usual, the courts employ the harmless error standard in cases of objections and the plain error standard when no objection is made. Id., at 14–15. If there is a prompt objection, this type of improper cross-examination or instance of vouching will result in a reversal if the court finds that it prevents the jury from judging the evidence fairly in the overall context of the trial. See generally United States v. Sherlock, 865 F.2d 1069, 1082 (9th Cir. 1989). In cases like United States v. Combs, supra, 379 F.3d 564, where there is no timely objection to either the cross-examination or the prosecutorial vouching, the question is whether the error was plain and affected substantial rights by seriously affecting the fairness or integrity of the proceedings or by resulting in a miscarriage of justice. 

	Combs provides a useful example of a reversal based on improper cross- examination. A panel consisting of Judges Kim Wardlaw, Stephen Reinhardt and David Thompson determined that “[b]ecause there was no direct evidence of guilt and the circumstantial evidence was not overwhelming, the case boiled down to whether the jury believed Combs when he testified that he had not manufactured methamphetamine.” Id., at 573. Noting that Agent Bailey sat at counsel’s table throughout the trial, Judge Wardlaw wrote, “Bailey’s testimony was critical, and possibly determinative.” Id. Given such a critical issue, to require the defendant to call the lead investigating agent a liar is “fundamentally unfair.” Id. It undermines the fairness, integrity or public reputation of the proceedings. 

	The trial court in Combs, moreover, compounded the error by lending its weight to the inquiry, and the prosecutor emphasized the evidence in her closing argument. Judge Wardlaw had no trouble concluding that under the circumstances, there was error, it was plain, and it affected substantial rights such that a reversal was necessary. Not only did the prosecutor commit misconduct, but also the conduct was severe enough to require a reversal. Compare United States v. Richter, supra, 826 F.2d 206 (cross-examination forcing accused to claim others lied on the stand required reversal where prosecutor revisited testimony in closing argument). If there is a persuasive argument about how a case primarily boils down to a credibility contest and the court agrees, the error cuts to the heart of the trial. See, e.g., United States v. Rudberg, 122 F.3d 1199, 1205–06 (9th Cir. 1997) (finding plain error where “[p]roving the conspiracy charge against Rudberg depended entirely on the testimony of witnesses whose testimony the prosecutor repeatedly supported with reference to the Rule 35 process”). 

	As for vouching, in particular, the Ninth Circuit considers a variety of contextual factors in determining whether to reverse, including “the form of vouching; how much the vouching implies that the prosecutor has extra-record knowledge of or the capacity to monitor the witness’s truthfulness; any inference that the court is monitoring the witness’s veracity; the degree of personal opinion asserted; the timing of the vouching; the extent to which the witness’s credibility was attacked; the specificity and timing of a curative instruction; the importance of the witness’s testimony and the vouching to the case overall.” United States v. Necoechea, 986 F.2d at 1278. Again, these considerations are employed under the appropriate standard of review. When no objection is made, a court will only reverse for plain error. 

	Even then, all hope is not lost. In Combs, the panel found plain error because of the clear, critical importance of Agent Bailey’s testimony to the case. When a case comes down to the word of one witness against the word of another, an explicit governmental endorsement is prejudicial in a way that impacts the integrity of the proceedings. So when the prosecutor said that Agent Bailey wouldn’t risk his job to lie on the witness stand just to win a single case, she went too far. 

	It is important to emphasize that not all courts recognize the prejudicial nature of the error. In Expert Witnesses and Prosecutorial Vouching: New Frontiers in ‘Soft Expert’ Testimony: RICO Report, we reviewed a troubling case tried by New York defense lawyer Jerry Shargel — whose clients have included John Gotti, as well as Daniel J. Pelosi in the recent trial over the death of R. Theodore Ammon — in which an extraordinary instance of prosecutorial vouching was deemed not to be reversible. See United States v. Cho, Case No. 96-1608 (2d Cir. May 23, 1997) (unpublished). In Cho, the trial court allowed an AUSA who had participated in the investigation of a case to testify in the same case and provide so-called expert testimony establishing the truthfulness of the informers’ testimony. In essence, the prosecutor testified that she only gives deals to witnesses who tell the truth. Then, the trial counsel in closing argument highlighted the testimony. 

	Strangely, on appeal the Second Circuit refused to find plain error since it did not think that in a case that actually was a credibility contest, such egregious vouching seriously affected the integrity of the proceedings or created a danger of infecting the jury’s verdict. To add insult to injury, the panel found that a bare-bones instruction telling the jury to weigh the credibility of the witnesses — after the court rejected more comprehensive instructions about informer credibility — was sufficient. This holding is extremely troubling and fortunately remains relatively anomalous. While most defense counsel appreciate when this column discusses their trials, we apologize in advance to Mr. Shargel for revisiting this distasteful experience. 

	In United States v. Necoechea, supra, 986 F.2d 1273, a conservative Ninth Circuit panel composed of Judges Pamela A. Rymer, Alfred T. Goodwin and Diarmuid F. O’Scannlain also found that two instances of vouching were errors, but not plain ones. There, a key informer received a deal for providing testimony connecting the defendant to the cash in a drug transaction. In opening argument, the prosecutor pointed to a truthfulness provision in the witness’s deal and later the defense noted the same witness did not testify against others. In closing argument, the prosecutor informed the jury that the other cases had been resolved. This was a submission of facts not in evidence. Id., at 1279. 

	Finding that the vouching was not critical to the prosecution’s case, Judge Rymer observed that the witness’s credibility was “forcefully challenged at trial,” id. at 1280, and some other circumstantial evidence supported the same link between Necoechea and the crime. The panel therefore concluded that the case was not so close as to hold that the vouching required reversal. Compare United States v. Jackson, 84 F.3d 1154, 1158 (9th Cir. 1996) (holding that given “abundant evidence” against defendant, prosecutor’s statement that important witness had nothing to gain by untrue cooperation because she would not be charged with a crime anyway was not plain error). 

Conclusion 

	It is well settled that a prosecutor commits misconduct by forcing a defense witness on cross-examination to call a witness a liar or by lending the government’s prestige through vouching for the witness. Even so, it unfortunately happens all too often. The question is, What can be done about it? Courts have made no headway by merely issuing verbal admonishments and rebukes to prosecutors. Surprisingly, for those prosecutors who bring an excess of zeal to their cases, even reversals on appeal do not seem to stop misconduct at the trial level — especially in light of the lower risk of reversal they incur under the harmless and plain error standards of review. At one time, one might have thought that reversals would help to curb prosecutorial misconduct. See The Supervisory Power to Dismiss: An Essential Solution to the Problem of Prosecutorial Misconduct, 20 CACJ Forum at 18 (Dec. 1993). 

	It seems that only dismissals of charges will deter those prosecutors who repeatedly run afoul of the law. Some but very few of the most egregious violations in fact have resulted in dismissals. See, e.g., United States v. Marshank, 777 F. Supp. 1507 (N.D. Cal. 1991) (dismissing indictment where defense counsel, in concert with the prosecution, maintained conflict of interest and took shares of forfeiture monies gained by client-informers who testified against another client); United States v. Valerie Tashjian, No. CR-88-124(B)-PAR (C.D. Cal. 1988) (dismissing case against a wife where the prosecutor obtained her plea by threatening more serious charges against her co-defendant husband). 
	Perhaps if dismissal was a remedy that was sanctioned more often by the appellate courts, more misconduct might disappear from the halls of justice. Strangely enough, the courts’ inherent supervisory power to dismiss is a doctrine rarely applied or upheld on appeal. See, e.g., United States v. Sears, Roebuck & Co., 518 F. Supp. 179 (C.D. Cal. 1981), rev’d 719 F.2d 1386 (9th Cir. 1983) (reversing dismissal for misconduct); United States v. Isgro, 751 F. Supp. 846 (C.D. Cal. 1990, rev’d 974 F.2d 1091 (9th Cir. 1992) (same). Nevertheless, appellate courts have concluded that dismissal under the courts’ supervisory power is an appropriate remedy when necessary to deter outrageous prosecutorial misconduct. See United States v. Kojayan, 8 F.3d 1315, 1325 (9th Cir. 1993) (Kozinski, J.) (vacating the conviction and remanding the case with instructions to the trial court to determine whether to “dismiss the indictment with prejudice as a sanction for the government’s misbehavior”); see also United States v. Bernal-Obeso, 989 F.2d 331, 337 (9th Cir. 1993) (Trott, J.) (“Should the court uncover egregious wrongdoing by the government, however, nothing in this opinion forecloses consideration by the court of dismissing the indictment for outrageous government conduct.”).

National Association of Criminal Defense Lawyers (NACDL) 
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							Respectfully submitted
							by Defendant's Attorney,

							____________________________
							Attorney for Defendant

NO. 123456

THE STATE OF TEXAS	§		IN THE _____ DISTRICT COURT
§
V.	§		OF
§
JOHN DOE	§		____________ COUNTY, TEXAS

ORDER
	The Court considered the above motion.  It is ordered that the State's attorneys be and each is prohibited from propounding to any witness such improper questions as Defendant complains of in the foregoing Motion To Suppress Improper Prosecutorial Conduct (“Is another witness lying?”).  It is further ordered that the State's attorneys be and each is prohibited from expressly or implicitly presenting to the jury any such improper statements, questions or arguments as defendant complains of in the foregoing Motion To Suppress Improper Prosecutorial Conduct ("Is another witness lying?").
	Signed for entry, today ____________, 2005.

							___________________________
							JUDGE PRESIDING