More on SAUSA

SAUSA an interesting piece from Volokh which I posted the other day.

It’s black letter law that a prosecutor may not ask a defendant to comment on the truthfulness of another witness, United States v. Combs, 379 F.3d 564, 572 (9th Cir. 2004), United States v. Geston, 299 F.3d, 1130, 1136 (9th Cir. 2002), but the prosecutors here did just that. One prosecutor asked: “You’re saying that [they’re] going on the stand, swearing an oath to testify to the truth and then lying . . . ?” He even pitted his own credibility against Harrison’s, asking, “So I’m in the conspiracy against you, is that right?” These were not isolated incidents: Improper questioning was an organizational theme for the prosecutor’s entire cross-examination.

The vouching was similarly patent. The government was entitled to rebut Harrison’s suggestion that Officers Jenkins and Kirby were motivated to lie, but it crossed the line when one prosecutor mentioned during closing that the officers had been promoted “with no adverse action whatsoever” after an internal military investigation. This clearly “suggest[ed] that information not presented to the jury,” but available to the investigators, supported the officers’ testimony. United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993). And it would be hard to find a clearer case of “placing the prestige of the government behind a witness,” id., than the prosecutor’s statement that the “[g]overnment stands behind” Officers Jenkins and Kirby.

The government in its argument then:

The government concedes the impropriety of many of these statements, but points out that the prosecutors were Special Assistant United States Attorneys on loan from the military.

The clear implication is that the military lawyers should be excused because they don’t know the law. Well, that may so – they don’t know the law – but they should as a result of their own military training.

There are plenty of military and civilian cases on point that these “military lawyers” would have learned about at the TJAGSA Basic Course and in the course of their practice. For example:

Getting an accused to say on cross-examination that the prosecution witnesses are lying.

United States v. Jenkins, 54 M.J. 12 (C.A.A.F. 2000)(Court consistently held that a witness may not opine that another witness is lying or telling the truth. The Court of Appeals for the Armed Forces has adopted the rule followed in the federal circuits that have decided the issue that “prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper.” And see United States v. Marrie, 43 M.J. 35 (C.A.A.F. 1995).

Human Lie Detector testimony.

United States v. Kasper, 58 M.J. 314 (C.A.A.F. 2003). Mil. R. Evid. 608 permits evidence regarding the general character of a person for truthfulness. The authority to introduce opinion evidence does not extend to “human lie detector” testimony – an opinion as to whether the person was truthful regarding a fact at issue in the case. See United States v. Whitney, 55 M.J. 413, 415 (C.A.A.F. 2001); United States v. Whitted, 11 F.3d 782, 785-86 (8th Cir. 1993).

These problems are not isolated. I’ve just finished reading one appellate record and am on another where the above are commonplace. These are situations where the defense is not objecting. In one of them even the defense is stating in an opening statement that several witnesses will testify they believed the accused, and they ultimately did testify that way without objection. And I just got this nugget from another record of trial a colleague is reviewing.

TC: Objection your honor, hearsay. MJ: Are you kidding me? This is your witness. His entire direct was hearsay, although the defense never objected, and now you want to object when they question him about the same things you were questioning him about? Denied.