Ask Ethics Alarms: “Why Is It Unethical For A Prosecutor To Say That A Witness Is telling The Truth?”

"Would I try to convict an innocent man?"

“Why would I try to convict an innocent man? He has to be guilty.”

The primary Ethics Alarms topic scout, the Amazing Fred, has posed a question about this case, in which a child pornography conviction was overturned because the government prosecutor repeatedly stated that his witnesses were stating the truth, and that the government doesn’t prosecute defendants who aren’t guilty.

Fred asks the question this way:

“A prosecutor told a jury that prosecution witnesses were credible…Isn’t a defense attorney allowed to discredit prosecution witnesses? Why shouldn’t a prosecutor be free to argue the opposite?

The problem isn’t arguing that prosecution witnesses are credible, but rather the prosecutor appearing to personally vouch for the witness. Lawyers aren’t witnesses, and their opinions aren’t testimony or evidence. A lawyer can tell a jury that a defendant is guilty or innocent, but a lawyer cannot say “I believe “ a witness or “I believe” the defendant is guilty. It doesn’t matter what the lawyers believe, and they prejudice the jury by making their own credibility part of the case. Lawyers don’t have to personally believe in the positions they argue.

In the case at hand, a convicted defendant appealed on the basis that Assistant US Attorney Paul Roberts had made two impermissible arguments during his closing.  He personally vouched for the credibility of witnesses, and healso  stated that the government only prosecutes the guilty.

Here were the unethical vouching statements by Roberts:

  • “Ms. Penix testified that it was not her. She is against child pornography. I’m totally convinced that that’s truthful.
  • “Mr. Jolly listened carefully to the questions and testified truthfully to what happened.”
  • “I’ll try and suggest to you a number of reasons why I believe that he [Jolly] is worthy of believing.”
  • “Unequivocally, truthfully, and corroborated by Ms. Penix.”
  • “You’ve got to decide. And I think as you look at [Mr. Jolly’s] testimony, you can understand that when he testified he didn’t know anything about peer-to-peer networks and FrostWire, that he’s telling the truth.”

I’ve bolded the unethical statements. The prosecutor doesn’t know that anyone is telling the truth. All he can do is assert why the witness is credible. His personal belief is not evidence, nor can he say “He testified truthfully” when he doesn’t know that for certain, and the fact that he believes it is irrelevant. Presumably he doesn’t disbelieve the testimony, because lawyers can’t knowingly put lying witnesses on the stand. He cannot know, however, and thus cannot represent to a jury that he knows.

In reversing the conviction, the Fifth Circuit wrote:

We have repeatedly admonished that a prosecutor may not state, ‘The prosecution’s witnesses are telling the truth’ or ‘I believe that the prosecution’s witnesses are telling the truth.’ We have no difficulty in concluding that the…remarks quoted above constitute impermissible vouching.

Roberts also said, in the same closing argument:

“What incentive is there for us to come in and try a person if he’s not the person that did the offense?”

Ugh. This essentially suggests that the very fact of prosecution is evidence that a defendant is guilty. This may be factually accurate in the statistical sense that most defendants are guilty, but it undermines the presumption of innocence that is at the heart of the justice system. The court was emphatic in throwing out the conviction:

The Government does not attempt to defend this statement; nor can it…the prosecutor here effectively stated ‘that the Government prosecutes only the guilty.’ This particularly egregious form of argument has…been considered and condemned by this Court.

The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. That same power and force allow him, with a minimum of words, to impress on the jury that the government’s vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he is guilty.

Yes, it’s true: TV prosecutors often cross these lines, but the lines are still bold and black, and must not be crossed in real trials. Prosecutors present the evidence, and it is assumed that if the evidence is being offered, it is legitimate. The prosecutor’s opinions about the evidence, however, can only prejudice or mislead the jury, and as we all know, while the government tries to only prosecute the guilty, it is sometimes tragically wrong.


Facts: Prosecution Accountability

7 thoughts on “Ask Ethics Alarms: “Why Is It Unethical For A Prosecutor To Say That A Witness Is telling The Truth?”

  1. “Presumably he doesn’t disbelieve the testimony, because lawyers can’t knowingly put lying witnesses on the stand.”

    So, would it have been okay if the prosecutor had said, “Mr. X testified to the events at issue, and I have no reason to disbelieve him.”?

      • Probably also “he has no reason to lie” if in fact the witness wasn’t a fellow bad guy offered a deal and doesn’t otherwise stand to benefit from testifying. Or maybe you could just point that out: “Mr. Smith was a bystander who came forward on his own. He isn’t a co-conspirator offered a deal to testify. He isn’t getting so much as cab fare to be here. He has no reason not to be telling the truth.”

  2. Since I’m still wrapping my head around just how fine a line between ethical and unethical this is and how a matter of wording makes a huge difference, lemme ask what probably is a completely silly question:

    Does the inhibition apply to defense attorneys also?

        • If an attorney had actual knowledge about the events, then he would be subject to being called to the stand to testify regarding his knowledge, and be subject to cross examination. The only appropriate forum for an attorney to personally vouch for another witness, would be for him to be called as a witness as well. To assert a personal opinion without the ability to cross examine, would be to introduce hearsay (especially if the lawyer had no direct knowledge, but was asserting this based on the opinions of others).

          The lawyer can introduce evidence demonstrating credibility. He could argue that statements are consistent with facts presented. He could argue consistency with other witnesses testimony. But he could not personal vouch or corroborate without himself being called as a witness.

          It matters not if the attorney in question is defense or prosecution.

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