Witnesses - Bolstering / Vouching

United States v. Groysman, 766 F.3d 147 (2d Cir. 2014)

The Second Circuit reversed this health care fraud conviction on the basis of several “egregious” evidentiary errors committed at trial. The defendant was charged with conspiring with a company that supplied durable medical equipment to prepare false invoices. The wholesaler was cooperating and taped many of the conversations, though many were inaudible. The government offered testimony from its case agent for several days at the start of trial. The agent (1) offered inadmissible bolstering testimony by testifying that certain transactions occurred, based only on his interviews of the cooperators – he had no personal knowledge to verify that these transactions occurred; (2) offered a summary chart which was not a summary of voluminous evidence, but simply a recitation of what he was supposedly told by the cooperators, thus violating both the hearsay rules and the bolstering rules and the rule governing the admissibility of summary charts; (3) the use of the agent to summarize the case at the outset was improper because it amounted to opinion testimony. The Second Circuit, as noted above, characterized these evidentiary errors as egregious and supported a plain error standard of review reversal.

United States v. Hill, 749 F.3d 1250 (10th Cir. 2014)

After the defendant’s statement was played in court, the government called an “expert” FBI agent who had training in determining if a person was being truthful or not and he offered his expert opinion that the defendant was not being truthful. Among other reasons, the agent found the defendant to lack credibility because he said, “I swear to God” and other statements that showed that he invoked his belief system, rather than relying on facts to support his protestations of innocence. The Tenth Circuit held that this was reversible error even in the absence of an objection by the defense attorney. Juries are tasked with making credibility decisions, not government experts.

United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014)

The government is not permitted to introduce the portions of a cooperating witness’s plea agreement that bolster the witness’s credibility (e.g., the witness promises to tell the truth and will suffer consequences if he does not tell the truth and will only receive the benefit of his bargain if he tells the truth), until the defense challenges the credibility of the witness. Thus, assuming the defense does not question the credibility of the witness during opening statement, the prosecution may not raise the issue during the direct examination of the witness and the prosecution may not bolster the credibility of the witness during the opening statement.

United States v. Johnson, 529 F.3d 493 (2d Cir. 2008)

The DEA agent’s testimony was replete with improper hearsay, opinion, vouching, and argumentative testimony. The agent testified about the course of the investigation, declaring, “We found out that . . .” and “We determined that . . .” The agent related what co-conspirators told him when they were first arrested, to explain what he did next in the investigation. He thenexplained what “corroboration” meant and explained what he did and learned to corroborate what he was told by informants and co-conspirators. He further explained that he was skeptical of what informants told him until he corroborated what they said and he was then able to ensure that the informants told him the truth. While it may be more interesting to a jury to learn how the police conduct investigations, a substantial amount of this testimony was inadmissible. Because defense counsel did not object, the plain error standard applied and the Second Circuit held that the inadmissible evidence did not meet this standard.

United States v. Brooks, 508 F.3d 1205 (9th Cir. 2007)

Testimony from witnesses about the various steps that were taken to secure a wiretap amounted to a form of improper vouching or bolstering, particularly testimony that judges had approved the wiretap applications.

United States v. Cunningham, 462 F.3d 708 (7th Cir. 2006)

A law enforcement officer testified about all the hurdles that were satisfied in order to obtain a wiretap. This amounted to improper bolstering by implying to the jury that numerous law enforcement officials and agents believed that the defendant was guilty (and that there was probable cause to initiate the wiretap).

United States v. Harlow, 444 F.3d 1255 (10th Cir. 2006)

The prosecutor repeatedly referred to the judge’s role in reducing the co-conspirators’ sentences, thus encouraging the jury to believe that the judge believed the witnesses. This was error, but was cured by the judge’s instruction to the jury.

Earls v. McCaughtry, 379 F.3d 489 (7th Cir. 2004)

The defendant was charged with molesting a six-year old child. There were no witnesses to the events and no physical evidence corroborating the child’s statements. A social worker who interviewed the child and testified as an expert said that she believed the child. This was inadmissible evidence and the attorney’s failure to object amounted to ineffective assistance of counsel. In addition, during the videotape of the child prepared by the social worker, the social worker told the child that she believed her and the defendant should not have done that to her. The attorney’s failure to redact the tape was ineffective assistance of counsel.

Snowden v. Singletary, 135 F.3d 732 (11th Cir. 1998)

Permitting an expert witness to testify that 99.5% of children tell the truth in child abuse cases was a denial of fundamental fairness and in the circumstances of this case, where the child's credibility was the central issue, required setting aside the conviction.

United States v. Sanchez-Lima, 161 F.3d 545 (9th Cir. 1998)

One agent was asked whether he thought another agent was telling the truth. The agent whose veracity was in question was a critical witness relating to the charges in the indictment (assault on a federal officer). Even though the agent/witness’s veracity was challenged when he testified, the government erred by attempting to rehabilitate him by asking another witness whether the challenged witness was telling the truth. Reversible error.

United States v. Dwyer, 843 F.2d 60 (1st Cir. 1988)

It was improper for the trial court to instruct the jury that “although an immunized witness may not be prosecuted for past crimes revealed by his testimony, even an immunized witness is subject to prosecution for perjury if he intentionally lies under oath.” This amounts to a comment on the credibility of the unindicted co-conspirator’s testimony which was given under a grant of immunity.

United States v. Forrester, 60 F.3d 52 (2d Cir. 1995)

A witness claimed that she told the agent about the defendant’s participation in the drug conspiracy and also identified a photograph of the defendant for the agent. The agent then testified that he did not remember the witness saying this, or identifying the defendant. Nevertheless, when asked by the prosecutor, the agent gave his opinion that nothing the witness said in court was inconsistent with her statement at the time of the initial interview. The prosecutor claimed that this opinion testimony was admissible “to aid the jury” under Rule 701. This was erroneous. Far from being “helpful,” the agent’s testimony invaded the traditional province of the jury.

United States v. Fernandez, 829 F.2d 363 (2d Cir. 1987)

The credibility of a government witness was not challenged on cross-examination to the extent justifying the admissibility of a cooperation agreement between the government and a witness on re-direct examination. Only after a witness’s credibility has been challenged is a plea agreement by that witness admissible. In this case, the witness’s credibility was not sufficiently attacked to justify the admissibility of her cooperation agreement.

United States v. DiLoreto, 888 F.2d 996 (3rd Cir. 1989)

The prosecutor vouched for the credibility of one of his witnesses, relying on evidence that was not in the record. This is reversible per se. The prosecutor explained to the jury that the government “does not put liars on the stand.” This requires that the conviction be set aside. In a later opinion, the Third Circuit held that, though it was error to make this argument, such errors are not to be considered reversible per se.United States v. Zehrbach, 47 F.3d 1252 (3rd Cir. 1995).

United States v. Porter, 821 F.2d 968 (4th Cir. 1987)

It is error to admit into evidence a witness’ plea agreement which contains the witness’ agreement to take a polygraph test to verify his trial testimony.

Cooper v. Sowders, 837 F.2d 284 (6th Cir. 1988)

It was improper for an informant to testify that he had been responsible for the conviction of numerous other people.

United States v. Davis, 838 F.2d 909 (7th Cir. 1988)

A co-conspirator testified that three customers were convicted of offenses relating to the marijuana distribution conspiracy about which she was testifying. This improper bolstering testimony was harmless in this case.

Maurer v. Department of Corrections, 32 F.3d 1286 (8th Cir. 1994)

This trial pitted the defendant, charged with “date” rape against the alleged victim. The only issue was who was telling the truth about the encounter in the defendant’s trailer. The prosecutor asked each of the four prosecution witnesses (two of the victim’s friends, and two law enforcement officers) whether the victim “seemed sincere when she said she was raped.” Thisvouching testimony rendered the trial fundamentally unfair. The prosecutor asked these improper questions only because it was important to bolster the victim’s credibility.

United States v. Cortez, 935 F.2d 135 (8th Cir. 1991)

The government offered the opinion testimony of two police officers that the “snitch” was being truthful. While opinion testimony is admissible to support the witness’s character for truthfulness, the opinions in this case were not based on any foundation. Neither officer had spent a full day with the snitch and neither had participated in the investigation of the snitch. The trial court abused its discretion in admitting this testimony – though it was harmless error.

United States v. Azure, 801 F.2d 336 (8th Cir. 1986)

It is improper to permit an expert witness to testify that in his opinion there is no reason why an alleged victim of child sex abuse was not telling the truth. It is permissible for an expert to testify about a child’s ability to separate facts from fiction, by summarizing medical evidence and giving an opinion as to whether that evidence is consistent with sexual abuse; by discussing various patterns in child sex abuse cases and comparing them with patterns in the case at bar. But that is different from allowing an expert to state whether or not a witness is believable. The latter constitutes an improper invasion into the province of the jury.

United States v. Rudberg, 122 F.3d 1199 (9th Cir. 1997)

The prosecutor repeatedly violated the rule against vouching for his witnesses. First, he asked an FBI agent whether the agent determined that the witness was entitled to a Rule 35 reduction in light of the witness’s substantial assistance, and the agent affirmed that the witness was entitled to this benefit. Next, with regard to one witness, the prosecutor elicited testimony that the witness had previously been denied a Rule 35 because he left out some facts in his debriefing, but this time he was being entirely truthful. Finally, the prosecutor explained to the jury in closing argument that witness’s did in fact receive reduced sentences because of their truthful testimony. Each of these instances amounted to improper bolstering and vouching. The conviction was reversed.

United States v. Frederick, 78 F.3d 1370 (9th Cir. 1996)

The prosecutor improperly bolstered the testimony of a government witness when she argued in closing that the victim’s in-court testimony was consistent with what she told law enforcement agents earlier. The witness’s prior consistent statements were ruled inadmissible on hearsay grounds when they were offered at trial.

United States v. Kerr, 981 F.2d 1050 (9th Cir. 1992)

The prosecutor committed plain error in his closing remarks by repeatedly stating that “he didn’t think” the witnesses were lying; and “he didn’t think the witnesses were hoodwinking” the agents. Even absent objection, these comments necessitated reversing the conviction. The only objection which was made – and was sustained – was when the prosecutor suggested that the judge believed the witness in accepting his plea agreement. The sustained objection, however, was not sufficiently forceful and did not remove the taint of the improper argument.

United States v. Smith, 962 F.2d 923 (9th Cir. 1992)

The prosecutor’s closing argument amounted to plain error. The prosecutor argued that his job was to present the truth to the jury and that he would prosecute anybody for perjury who told a lie. He also stated that the court would not let him do anything wrong. He repeatedly statedthat his job was not to secure a conviction, but only to present the truth and to turn over all favorable evidence to the defense. Because the witness for whom the prosecutor was vouching was a critical witness for the government, this was plain error – that is, reversible error, despite the absence of a contemporaneous objection.

United States v. Simtob, 901 F.2d 799 (9th Cir. 1990)

While a government witness was on the stand, the prosecutor offered to immunize the witness for any false statements he may previously have made. Because this witness’s credibility was pivotal in the case, this constituted improper vouching for the testimony of the witness and required reversal of the conviction.

United States v. Shaw, 829 F.2d 714 (9th Cir. 1987)

During opening statement, the prosecutor improperly stated that one of the government’s witnesses was also facing a robbery charge but that the government had agreed “that as long as he is truthful we will present his truthful cooperation to the local prosecutor.” Obviously, during opening statements, this was not a response to an attack on the witness’ credibility. The Ninth Circuit holds that the remark “necessarily implied that the prosecution had some method of determining whether the witness’s testimony was truthful, so that it will know whether to present the witness’s ‘truthful cooperation’ to the local authorities.”

United States v. Eyster, 948 F.2d 1196 (11th Cir. 1991)

On cross-examination, a government witness indicated that certain counts of the indictment to which he pled guilty were false – he was not guilty of the charges to which he pled guilty. On re-direct, the prosecutor suggested that there was a typographical error in the plea agreement and thus, the witness only pled guilty to the charges which he was, in fact, guilty of. This re-direct was erroneous: there was no typographical error. The prosecutor’s questions were based on evidence not in the record and amounted to improper bolstering of the witness. This was reversible error. In assessing whether this was grounds for reversal, the court noted that “the government’s reference to a typographical error was ultimately an outright falsehood designed to mitigate [the witness’] willful perjury.”

United States v. Sorondo, 845 F.2d 945 (11th Cir. 1988)

A law enforcement agent testified that the informant upon which he relied had worked on a number of cases which led to the conviction of well over 100 other defendants. The Eleventh Circuit holds that this is reversible error: “A jury had an obligation to exercise its untrammeled judgment upon the worth and weight of testimony and to bring in its verdict and not someone else’s.” Significantly, the Eleventh Circuit concludes that this testimony constituted plain error. Although the defendant had objected to this testimony, he had objected only on the grounds of relevance which was not the proper objection.

United States v. Nanny, 745 F.Supp. 475 (M.D.Tenn. 1989)

During closing argument, the prosecutor referred to military police officers (witnesses in this case) as “unbiased” and individuals who had “no reason to lie.” The prosecutor also questioned the defense attorney’s challenge of the credibility of these officers stating “I am a United States Army officer, I represent the government.” These statements in closing arguments were prejudicial and inexcusable. These statements of the prosecutor were “foul blows” and necessitated a new trial.