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Prosecutorial Misconduct–Improper Vouching for Correctional Officers

Case Name: People v. Rodriguez (2018) (2020) 9 Cal.5th 474
Case #: S251706
Last Updated: May 5, 2020

Did the prosecutor improperly vouch for the testifying correctional officers by arguing in rebuttal that they had no reason to lie, would not place their careers at risk by lying, and would not subject themselves to possible prosecution for perjury?

Opinion By: Justice Groban (unanimous decision)
Held: The prosecutor impermissibly vouched for witness credibility by asserting in closing argument that two testifying officers would not put their careers at risk by falsely testifying. Rodriguez, a prison inmate, was convicted of assault and battery offenses based on evidence that he struck a correctional officer and attempted to hit others. Two correctional officers testified regarding the incident. Their testimony included the number of years they worked for CDCR. During closing argument, over defense objection, the prosecution argued the officers were credible because they would not put their careers at risk or subject themselves to possible prosecution for perjury. The Court of Appeal reversed, concluding the prosecutor committed reversible error with respect to all counts by improperly vouching for the officers’ credibility during closing. The Attorney General petitioned for review. Held: Affirmed. Improper 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. Here, the prosecutor’s arguments that the officers would not lie because neither would put his “entire career on the line” or “at risk” constituted impermissible vouching because the record did not contain any direct or circumstantial evidence about this. “Whether an officer would be fired for testifying falsely would not depend on the number of years the officer had been working . . . .” The prosecutor’s statements conveyed that he knew information about the discipline of law enforcement officers that was not known to the lay juror and this was improper. Additionally, “[w]hen a prosecutor argues beyond the record about the career risks of untruthful testimony, the prosecutor invites the jury to fill in gaps in the evidentiary record by reference to the jury’s own surmise based on the special reputation of law enforcement agencies and officers for veracity, as well as suppositions about the special insight prosecutors may have into law enforcement disciplinary procedures.” [Editor’s Note: The Court disapproved (1) People v. Caldwell (2013) 212 Cal.App.4th 1262, which held similar statements constituted rebuttal argument rather than improper vouching; and (2) People v. Rodriguez (2018) 26 Cal.App.5th 890 (the Court of Appeal opinion in this case), because the court appeared to overstate the import and effect of the prosecutor’s remarks. Because the Attorney General did not argue harmlessness in the Supreme Court, the court expressed no view regarding the Court of Appeal’s conclusions that the statements were prejudicial. However, the court observed courts have often found that brief statements such as the ones in this case have limited prejudicial effect.]

Prosecutors should generally avoid raising the subject of future perjury prosecutions in their closing arguments. The prosecutor’s statements generally asking what motive the officers would have to lie was proper because it did not suggest the prosecutor had personal knowledge of facts outside the record showing the officers were telling the truth, or invite the jury to abdicate its responsibility to independently evaluate for itself whether the officers should be believed. Likewise, pointing out that the assaulted officer had never seen Rodriguez before the incident and the length of the officers’ careers was proper because the prosecutor examined the officers on those facts. The court noted that the prosecutor’s comments regarding “possible prosecution for perjury” do not implicate quite the same concerns regarding improper vouching. That someone may be subject to “possible prosecution for perjury” for knowingly providing false testimony at a trial may well be a more widely appreciated proposition than is the likelihood of termination from employment for such conduct. (See Code Civ. Proc., § 2094, subd. (a)(2).) However, as the Attorney General conceded at oral argument, a lay juror would naturally think that a prosecutor would know more about when someone can be prosecuted for perjury than a juror. The court reiterated that the prosecutor is permitted to respond when defense counsel argues that a witness has lied, but cautioned prosecutors from arguing the witness would subject themselves to possible prosecution for perjury. This case was decided on 5/21/2020.

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