Cal Supreme Court on DA Witness Vouching

In People v. Rodriguez (2020) 9 Cal.5th 474, the California Supreme Court considered a case in which the prosecutor had argued to the jury that the officer witness would not lie, because doing so would put his career at risk. The prosecutor told the jury:

“So, now, we have two officers involved in this lie, apparently, according to the defendant. Another officer with a long career. His was over 20 years. So, we're supposed to believe that, for some reason, Officer Lowder would put his entire career with the Department of Corrections at risk, …” Id. at 479.

Defense counsel objected on the grounds that the prosecutor’s argument assumed facts not in evidence. That objection was impliedly overruled, and the jury ultimately convicted the defendant. On appeal, the defendant argued that the prosecutor had engaged in improper witness vouching. The Court of Appeal agreed, and reversed the conviction. The California Supreme Court granted a petition for review.

The Court wrote that “ ‘[i]mproper vouching occurs when the prosecutor either (1) suggests that evidence not available to the jury supports the argument, or (2) invokes his or her personal prestige or depth of experience, or the prestige or reputation of the office, in support of the argument.’ ” Id. at 480 (quoting People v. Anderson (2018) 5 Cal.5th 372, 415). The Court held that the prosecutor’s argument that the officer would not risk being fired for lying constituted improper vouching. The prosecutor had indeed argued evidence not available to the jury. The Court stated that the “prosecutor's career-related arguments ‘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.’ ” Id. at 481 (quoting United States v. Young (1985) 470 U.S. 1, 18). The Court noted that while a prosecutor may properly rebut a claim by the defense that the officer lied, the prosecution’s argument must be based on evidence presented to the jury. The Court wrote: “The error here is that the prosecutor's arguments were based on matters outside the record and that is not permitted.” Id. at 483. The Court affirmed the reversal of the defendant’s conviction.

The prosecutor had also argued to the jury that the officer would not have subjected himself to possible prosecution for perjury. The Court indicated that the possibility of perjury charges may have been within the common knowledge of the jurors. But the Court acknowledged (and the Attorney General had conceded at oral argument) that the jury may have understood that a prosecutor would know more about when a person can be prosecuted for perjury. Without deciding whether or not that argument was improper, the Court cautioned that “prosecutors are well advised to generally avoid raising the subject of future perjury prosecutions in their closing arguments.” Id. at 483.