Have you ever sat at counsel table after delivering a powerful closing argument highlighting your impeachment of Agent Doright, only to hear the government prosecutor in her rebuttal stand up and vouch for his honesty and integrity? Did you think to yourself, “That’s not fair”? It may not have been – and United States v. Alexander tells us why.
In Alexander, the Seventh Circuit addressed impermissible “vouching” by a prosecutor – using facts outside the testimony presented to bolster a witness’s credibility. During closing argument, the prosecutor, in an attempt to bolster a police officer’s testimony, argued that the officer would not violate his oath of office by lying, and further stated, that the officer had “no incentive, no incentive at all, to falsely implicate the defendant in any type of crime.” The first argument – the officer would not violate his oath of office – is impermissible vouching per se. The second argument – that the officer had no incentive to lie – was impermissible vouching because there was no evidence presented to support this assertion. (Query: Would there ever be evidence to prove this negative – that there is no incentive to lie?) On the other hand, the Court had no problem with the government argument that if the officer were going to lie, he would have made up much better facts than his actual testimony. The Court found this argument an appropriate appeal to the jury’s common sense, and not bolstering.
As this analysis reveals, the line between proper argument and impermissible vouching can be a difficult one to discern. That said, next time you are listening to a prosecutor explain why the government’s witnesses are worthy of the jury’s trust, ask yourself: Was there evidence presented at trial to support this argument? If the answer is “no,” don’t just sit there and think, “That’s not fair.” Stand up and speak, “Objection your honor, improper vouching.”