finding that the defendant was prejudiced by misconduct that included “the prosecutor’s disparagement of defense counsel’s argument,” “his improper characterization of the defendant’s testimony” concerning a witness’s veracity, “his improper enhancement of the officer’s credibility,” “his improper personal vouching against the credibility of [defendant’s] testimony,” and “the prosecutor’s statement to the jury that it had to find the defendant guilty if it believed the police officer’s testimony”
How later courts described this case
- finding that the defendant was prejudiced by misconduct that included “the prosecutor’s disparagement of defense counsel’s argument,” “his improper characterization of the defendant’s testimony” concerning a witness’s veracity, “his improper enhancement of the officer’s credibility,” “his improper personal vouching against the credibility of [defendant’s] testimony,” and “the prosecutor’s statement to the jury that it had to find the defendant guilty if it believed the police officer’s testimony”
- holding it is never proper for a prosecutor to ask a defendant whether a witness who has testified contrary to the defendant’s version of the facts was lying, because the questions effectively ask defendants to comment on another witness’ veracity and create the risk that the jury may conclude that it must find that the prosecution’s witness lied in order to find the defendant not guilty
- holding prosecutorial misconduct directed at the credibility of the defendant is extremely significant when the only link between the defendant and possession of a banned substance is the statement allegedly made by the defendant to the officer that he had been in possession of the banned substance
- holding that "were-they-lying" questions are improper because they put the defendant in a no-win situation and because "[i]t is unjust to make the defendant give an opinion as to who is lying when, in fact, it is possible that neither witness has deliberately misrepresented the truth"
Written by the judges who cited it.
The opinion
CADY, Justice
(dissenting).
I respectfully dissent. I agree with the majority that a prosecutor should not ask a defendant to comment on the veracity of another witness’ testimony. However, I disagree with the majority’s conclusion that the prosecutor’s questions and closing argument in this case resulted in the type of prejudice that justifies a new trial. I would conclude the ineffective assistance claim cannot be established due to the lack of prejudice.
It is instructive to observe that none of the federal case authority used by the majority to support the legal proposition that it is error for a prosecutor to cross-examine a defendant concerning the truthfulness of another witness included a further conclusion that the cross-examination was prejudicial. See Sanchez, 176 F.3d at 1220 (unnecessary to determine prejudice due to other error warranting reversal of the conviction); Boyd, 54 F.3d at 872 (no prejudice found); Akitoye, 923 F.2d at 224 (question was proper when viewed in context of prosecutor’s objective); Richter, 826 F.2d at 208 (question alone was not prejudicial). Furthermore, it is perhaps even more instructive that the federal case authority used by the majority when pointing out the “most disturbing” prosecutorial error in this case — telling the jury they must find the defendant guilty if they believe the officer’s testimony — went on to conclude such error was not prejudicial. See Reed, 724 F.2d at 681 (error did not amount to prejudicial error); Nwankwo, 2 F.Supp.2d at 769-70 (remark was improper but not prejudicial error).
There are, of course, cases that have found prejudicial error based on the type of prosecutorial misconduct that occurred in this case, but the point is that this type of error frequently does not result in a new trial. The error often is not prejudicial because courts frequently glean from the record that the prosecutor asked the erroneous questions and made the erroneous statements merely as a way to point out the contradiction in the testimony, not to solicit an actual opinion on the credibility of another witness. See Akitoye, 923 F.2d at 224-25. Additionally, such questions and statements do not result in prejudice because courts tend to place confidence in the jury and their ability to follow the court’s instructions. See Boyd, 54 F.3d at 872.
In this case, the questions of the prosecutor, placed in proper context, were not asked merely in an effort to solicit an opinion on the credibility of the police officer. They were asked to point out contradictory testimony and to suggest which witness might have a bias to testify untruthfully. The same is true for the statements made in closing argument, when considered in the context of the entire trial. The jury was presented with a clear conflict between the testimony of the police officer and the testimony of the defendant on an important issue, and the references to lying, although improper, were injected into the trial as an expression of the prosecutor’s argument that the defendant did not testify truthfully on this issue. Moreover, the references to lying were used in conjunction with a discussion of the *885 trial evidence, inferences drawn from the evidence, or the jury instructions. In fact, the prosecutor’s discussion of the issue in closing argument was largely from the perspective of “who is lying in this case,” and he examined the motives of witnesses other than the defendant to determine if they “would also lie.” In this context, the justifications recognized by the majority to support the underlying prohibition are only minimally implicated. See Akitoye, 923 F.2d at 224-25.
Furthermore, the trial court in this case instructed the jury that “statements, arguments, questions, and comments by the lawyers” were not evidence and the verdict was required to be based “only upon the evidence.” The trial court also properly instructed the jury on the burden of proof, which helps dispel concerns that the prosecutor’s “most disturbing” error distorted the State’s burden of proof. Additionally, just prior to the start of the closing arguments, the trial court again instructed the jury that the summations to be made by the attorneys should not be “construed by you as evidence,” but “are intended to help you in understanding the contentions of each side.” The majority discounts these instructions as merely “routine,” but routine or not, they exist to deal with the very issue that has generated dispute in this case.
The standard for prejudicial error to support relief requires “that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694, 104 S.Ct. at 2068, 80 L.Ed.2d at 698. This standard has not been met in this case. The majority has exaggerated the prosecutorial error in this case by failing' to place it in its context, and by overlooking the role of the jury instructions and the jury’s ability to follow those instructions. I would admonish that prosecutors refrain from the improper conduct engaged in this case, but I would affirm the conviction.
LARSON, J., joins this dissent.