Feb 18, 2013 Prosecutors may not ask defendants to opine on veracity of opposing witnesses
In a recent Maryland drunk driving trial that I won, the prosecutor asked my client — testifying at the hearing to suppress the evidence — whether the stopping police officer was lying about the reason that he stopped my client’s car. I objected, and the judge looked surprised. I told him that it is well settled in the caselaw that such a question is impermissible. The judge asked me to cite such a case. I replied that I did not have any citations with me, and may have offered to obtain such a case on my iPhone, which is equipped with Westlaw (this being a courthouse without WiFi). The prosecutor withdrew the question, and I proceeded to a victorious result, having nothing to do with the stop of my client’s car.
Judges are generalists, and not all come from criminal practice backgrounds. Moreover, judges handle both civil and criminal cases, and are not going to be schooled on all the minutiae of the law. I do my best to be ready with citations to statutes and caselaw that might come up at trial, but I will not be able to anticipate every single possibility to have every single legal authority ready at my fingertips to cite to the judge.
At least a year ago, I made a notation to blog on the foregoing issue. Had I done so, I would have been able more readily to pull up favorable authorities from the judge, from my blog.
My research found appellate courts repeatedly prohibiting prosecutors from asking defendants whether and why an opposing witness had lied. The only case I found to the contrary is the Maryland Fisher case cited below, which was overturned in 2007.
Here is the caselaw prohibiting prosecutors from asking defendants whether and why opposing witnesses would lie:
VIRGINIA. In 1997, Virginia’s highest court affirmed the trial court’s preventing a criminal defense lawyer from asking a brain injury doctor whether the shooting victim was capable of lying. James v. Virginia, 254 Va. 95, 487 S.E.2d 205 (1997). James‘s following reasoning shows that neither a prosecutor, criminal defendant nor civil party may inquire about whether or why a witness has lied:
It is well settled in this Commonwealth that the credibility of witnesses and the weight to be given to their testimony are questions exclusively for the jury. Barker, 230 Va. at 373, 337 S.E.2d at 732; Coppola v. Commonwealth, 220 Va. 243, 252, 257 S.E.2d 797, 803 (1979), cert. denied, 444 U.S. 1103 (1980); Zirkle v. Commonwealth, 189 Va. 862, 870, 55 S.E.2d 24, 29 (1949); Johnson v. Commonwealth, 142 Va. 639, 640, 128 S.E. 456, 456 (1925). The settled law of this Commonwealth simply does not permit a defendant to ask a witness to opine whether another witness is "capable of lying." The finder of fact, in this instance the jury, must determine a witness’ veracity.
James, 254 Va. 95 (emphasis added).
In 2007, Maryland’s highest court warned that prosecutors will almost always risk reversal by asking testifying defendants whether an opposing witness lied or the opposing witness’s motivation to lie:
[Defendant] was asked five “were-they-lying” questions. These questions were impermissible as a matter of law because they encroached on the province of the jury by asking petitioner to judge the credibility of the detectives and weigh their testimony, i.e., he was asked: “And the detective was lying?” The questions also asked petitioner to stand in place of the jury by resolving contested facts. Moreover, the questions were overly argumentative. They created the risk that the jury might conclude that, in order to acquit petitioner, it would have to find that the police officers lied. The questions were further unfair because it is possible that neither the petitioner nor the police officers deliberately *596misrepresented the truth. These questions forced petitioner to choose between answering in a way that would allow the jury to draw the inference that he was lying or taking the risk of alienating the jury by accusing the police officers of lying. Therefore, the trial court erred in allowing the State to ask petitioner “were-they-lying” questions. When prosecutors ask “were-they-lying” questions, especially when they ask them of a defendant, they, almost always, will risk reversal.
Hunter v. Maryland, 397 Md. 580, 596, 919 A.2d 63 (2007) (emphasis added) (reversing a conviction 5-2, due to the prosecutor’s asking the defendant about lying by opposing witnesses).
Hunter overturns the opposite proclamation by lower appellate court retired Judge Charles F. Moylan, Jr., who asserted that the trial judge properly overruled objections asking the testifying criminal defendant whether and why other witnesses had lied "for the obvious reason that the cross-examination was doing exactly what cross-examination is designed to do." Fisher v. Maryland, 128 Md. App. 79, 149, 736 A.2d 1125 (1999).
Most Maryland judges likely rely heavily on the intellect and erudition of retired Judge Charles F. Moylan, Jr., whose opinions I have often disagreed with, who I think too often gets too wordy in his written opinions, and who I think applied misplaced humor in exclaiming "Bleiben Sie, Bitte, Mein Hund!" (referencing a drug dog trained in German) in a section title in affirming the conviction in Jackson v. Maryland, 190 Md. App. 497, 988 A.2d 1154 (2010). In fairness to Judge Moylan, I point out that when I raised similar concerns on a lawyer listserv, a colleague said that many people like his use of humor in opinions, as opposed to the many dryly-written court opinions on the books. I do not see eye-to-eye with his sense of humor, though.
DISTRICT OF COLUMBIA
In 1993, the District of Columbia’s appellate court proclaimed that “We have repeatedly condemned questioning by counsel which prompts one witness to suggest that he or she is telling the truth and that contrary witnesses are lying.” "We reiterate that such questioning is patently improper." Scott v. U.S., 619 A.2d 917, 924-25 (1993) (emphasis added).
Scott footnotes the following strong concern:
More than seven years ago, in Freeman v. United States, supra. we said: [W]e are troubled by the recurrence of this particular type of attorney misconduct. This is the fourth case in little more than a year in which we have been presented with the same claim of error. We hope it will be the last.
Scott, 619 A.2 at 925, n. 12.
The trial judge sustained the improper "were they lying" questions before Scott answered, and Scott did not answer. Consequently, Scott found no ground to reverse on this issue.
DISTRICT OF COLUMBIA CIRCUIT
In 1995, the D.C. Circuit stated:
Determinations of credibility are for the jury, not for witnesses. United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987) (internal citations omitted). It is therefore error for a prosecutor to induce a witness to testify that another witness, and in particular a government agent, has lied on the stand. See, e.g., id. at 28 (Prosecutorial cross-examination which compels a defendant to state that law enforcement officers lied in their testimony is improper.); Scott v. United States, 619 A.2d 917, 924 (D.C. 1993) (We have repeatedly condemned questioning by counsel which prompts one witness to suggest that he or she is telling the truth and that contrary witnesses are lying.). The prosecutor here did just that. Had she merely asked about Boyd’s previous contacts with the officers, allowing the jurors to draw their own conclusions regarding the witnesses’ credibility, her examination would have been unobjectionable. She erred, however, in asking Boyd point-blank why the police witnesses would make up a story about him.
Boyd v. U.S., 54 F.3d 868, 870 (D.C. Cir. 1995) (emphasis added).
Boyd affirmed the conviction, confirming that the jury instructions were sufficient to avoid prejudice to the defendant for such questions and for the prosecutor’s vouching for police officer credibility in closing argument, and found the substantial evidence against Boyd also overcame his objection to this line of questioning.
In 1999, the Ninth Circuit reversed a conviction finding prosecutorial misconduct for the prosecutor’s asking the defendant whether a police officer lied on the witness stand (finding error but no plain error, where defense counsel did not object) and for the prosecutor’s asking the police officer whether the defendant had lied (finding reversible error, where the defense did timely object). U.S. v. Sanchez, 176 F.3d 1214, 1219-21 (9th Cir. 1999).
In 2011, the Eleventh Circuit found no plain error (the defense did not object) to the prosecutor’s repeated hounding of the defendant about whether twelve witnesses against her lied, asking a separate set of questions as to each witness, starting with the following for the defendant’s first opposing witness:
Q. Did he tell the truth when he said that you came to him and asked him to put money in the budget to fund your job?
A. No, he did not.
Q. He lied?
A. I never used the word lie.
Q. Why not?
A. I just don’t like the word.
Q. So he didn’t tell the truth. Does that make you feel better? [Do not conclude for moment that such flippancy is rare for prosecutors.]
U.S. v. Schmitz, 634 F.3d 1247, 167-71 (11th Cir. 2011).
Federal Evidence Review further discusses Schmitz, including addressing the other federal circuits that reject such a line of questioning.
Praised be New Hampshire’s Supreme Court for particularly slamming such prosecutorial behavior (but finding harmless error due to the overwhelming evidence of guilt) :
Here, the prosecutor asked the defendant on fifteen occasions whether police officers, and even his wife, had lied to the jury. As the State concedes, this questioning was highly improper. Indeed, the use of this tactic”asking the defendant whether another witness is lying”is incompatible with the duties of a prosecutor. State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003). Unfairly questioning the defendant simply to make the defendant look bad in front of the jury regardless of the answer given is not consistent with the prosecutor’s primary obligation to seek justice, not simply a conviction. Id.
Moreover it is inconceivable that any prosecutor would be unaware of the impropriety of such conduct. People v. Montgomery, 103 A.D.2d 622, 481 N.Y.S.2d 532, 532 (1984). Accordingly, today we use this opportunity to condemn, as forcefully as possible, prosecutorial cross-examination that compels a defendant to state that the police or other witnesses lied in their testimony. Id.
New Hampshire v. Souksamrane, ___ A.3d ___, 2012 WL 664165 (N.H. 2012) (emphasis added) (citing to opinions from the Iowa and New York appellate courts).
The state Supreme Court would not find plain error (the defense did not object), but found improper, the prosecutor’s asking the defendant again and again whether individual witnesses had lied against him, and why "would all these people like against you?" New Mexico v. Duran, 140 N.M. 94, 140 P.3d 515 (2006).