Vouching

Defense Vouching

It is well established that a prosecutor may not express a personal opinion as to the defendant's guilt because of the danger that jurors will interpret the opinion as being based on facts at the prosecutor's command which were not adduced at trial. (People v. Bain (1971) 5 Cal.3d 839, 848, 97 Cal.Rptr. 684, 489 P.2d 564; see also People v. Thompson, supra, 45 Cal.3d 86, 112, 246 Cal.Rptr. 245, 753 P.2d 37.) Although we have been cited to no case applying that rule to prohibit defense counsel from expressing a personal opinion as to the defendant's innocence, we find no reason why defense counsel are not equally barred from expressing their personal beliefs. Jurors are just as likely to interpret defense counsel's remarks as being based on outside knowledge. As the Attorney General correctly notes, rule 5–200(E) of the Rules of Professional Conduct prohibits all attorneys from asserting personal knowledge of the facts at issue." (People v. Tyler (1991) 233 Cal. App. 3d 1456, 1459–60.)

It is clear that counsel on both sides of the table share a duty to confine arguments to the jury within proper bounds. Just as the conduct of prosecutors is circumscribed, “[t]he interests of society in the preservation of courtroom control by the judges are no more to be frustrated through unchecked improprieties by defenders.” **1043 Sacher v. United States, 343 U.S. 1, 8, 72 S.Ct. 451, 455, 96 L.Ed. 717 (1952). Defense counsel, like the prosecutor, must refrain from interjecting personal beliefs into the presentation *9 of his case. See, e.g., ABA Model Code of Professional Responsibility DR 7–106(C)(3) and (4) (1980), quoted in n. 3, supra; ABA Model Rules of Professional Conduct, Rule 3.4(e)(1984). Defense counsel, like his adversary, must not be permitted to make unfounded and inflammatory attacks on the opposing advocate." (United States v. Young (1985) 470 U.S. 1, 8–9.)

California Rules of Professional Conduct Rule 3.4(g)

A lawyer shall not:

(g) in trial, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the guilt or innocence of an accused.

110k1171.3Comments on Evidence or Witnesses, or Matters Not Sustained by Evidence

110k2091Personal Knowledge, Opinion, or Belief of Counsel

110k2098(5)Credibility of Other Witnesses

Prosecution vouching

People v. Dickey (2005) 35 Cal.4th 884 7. Alleged vouching for a witness

Defendant contends the prosecutor committed prejudicial misconduct by vouching for the credibility of Gene Buchanan.

"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record.... However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the `facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' her comments cannot be characterized as improper vouching. [Citations.]" (People v. Frye (1998) 18 Cal.4th 894, 971, 77 Cal.Rptr.2d 25, 959 P.2d 183.)

The conduct defendant complains of occurred as the prosecutor, in his argument to the jury, acknowledged and sought to dispel any doubts they may have had regarding Buchanan's credibility. "He's a drug addict, street-wise, and he's con-wise and he doesn't work.... [¶] ... But that doesn't mean that the truth cannot come out of the mouth of a drug addict. It can come out of the mouth of a drug addict just as well as it can come out of the mouth of a priest. No priests lived at that Harvard address, only drug addicts. This murder was committed in hell. We don't have angels for witnesses, we've people that live in hell. [¶] But do you think Gene Buchanan would lie for $5,000? Maybe. Do you think Gene Buchanan would lie to send a man to prison? I don't think so."

We need not decide whether the prosecutor's comment amounted to improper vouching because defense counsel objected to the comment, the objection was sustained, and the court admonished the jury: "That's an improper argument, ladies and gentlemen, [the prosecutor] has stated his personal opinion. You are to ignore that statement, please." We presume the jury heeded the admonition and that any error was cured. (People v. Burgener (2003) 29 Cal.4th 833, 874, 129 Cal.Rptr.2d 747, 62 P.3d 1 (Burgener); People v. Jones (1997) 15 Cal.4th 119, 168, 61 Cal.Rptr.2d 386, 931 P.2d 960; People v. Wash (1993) 6 Cal.4th 215, 263, 24 Cal.Rptr.2d 421, 861 P.2d 1107.)