RHODE ISLAND CRIMINAL DEFENSE A Practice Manual – VOUCHING

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

VOUCHING

Vouching takes place “when the government states or insinuates that it possesses special knowledge that its witness is testifying truthfully or if the prosecution places the prestige of the government behind the witness.”

State v. Chakouian, 537 A.2d 409, 412 (R.I. 1988).

State v. Webber, 716 A.2d 738 (R.I. 1998). In a first-degree arson case, a fire marshal’s testimony that an accelerant-sniffing dog was more sensitive to the presence of accelerants than a lab test constituted impermissible vouching. R.I.S.C. vacated and remanded.

• “. a witness is not permitted to offer an opinion regarding the truthfulness or accuracy of another witness’ testimony, even when the opinion does not literally address the other witness’ credibility.” Id. at 742 (citing State v. Haslam, 663 A.2d 902 (R.I. 1995).
• Here, the fire marshal’s testimony had the same substantive import and bolstered another witness’ credibility.

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State v. Miller, 679 A.2d 867 (R.I. 1996). In a rape trial, the police detective’s testimony that lay witnesses sometimes have important information that has to be drawn out constituted impermissible witness vouching. R.I.S.C. vacated and remanded.

• “the admission of Detective Carroll’s testimony concerning her experience with witnesses and their tendency not to disclose important elements clearly violates the principles [against witness vouching].in this case wherein the quantity and quality of evidence were closely balanced and credibility was of paramount importance, the admission of the detective’s testimony on this issue would be construed as an endorsement of the mother’s credibility.” Id. at 873.
• Use this endorsement language in any close case of vouching.

State v. Haslam, 663 A.2d 902 (R.I. 1995). Defendant was convicted of first-degree child molestation against his stepdaughter. At trial, the complainant’s counselor testified that she was treating her for sexual abuse recovery. Counselor also testified about who the complainant claimed didn’t molest her (implying defendant had by elimination). A DCYF worker also testified that she found the defendant’s claim of a sexual assault against the complainant by another person unfounded. R.I.S.C. vacated and remanded.

• Counselor’s testimony constituted impermissible witness vouching. Counselor was retained months after the alleged abuse ended and had no direct knowledge of the acts. Even if she stated no opinion about whether the abuse occurred, the fact that the complainant was seeing a counselor for two years after the alleged incident had the same substantive import and the jury would perceive that she believed her. Id. at 906.
• The counselor’s testimony about who the complainant said didn’t molest her was inadmissible hearsay not permitted by United States v. Tome, 115 S. Ct. 696 (1995), because while it was a prior consistent statement, it was made after she had a motive to fabricate.
• The DCYF worker’s testimony constituted impermissible negative vouching as it implied that the defendant was not to be believed since she found his allegations unfounded. Id. at 907.

State v. Castore, 435 A.2d 321 (R.I. 1981). It was prejudicial error for a physician to express a factual opinion about whether a sexual assault occurred based upon what the patient told him as opposed to any medical tests or diagnosis. Such an opinion is beyond the realm of his medical capabilities and amounts to vouching for the patient’s credibility. R.I.S.C. vacated and remanded.

• “Dr. Brauner was in effect commenting on Barbara’s credibility when he concluded, despite no objective medical evidence, that she had been sexually assaulted.” Id. at 326.

State v. Roderigues, 656 A.2d 192 (R.I. 1995). In a second-degree child molestation case, defendant called a social worker to testify about the complainant’s smiley face drawing. On cross, the state elicited testimony that complainant was suffering post-traumatic stress disorder as a result of sexual abuse by the defendant. R.I.S.C. reversed.

• “Expert medical testimony that includes material not pertinent to diagnosis or treatment but that corroborates details set forth in the testimony of the complainant has the effect of buttressing the complainant’s testimony.” Id.
• Here, the witness was not an expert. The cross-examination exceeded the scope of direct and amounted to impermissible bolstering of the complainant.

State v. Lassiter, 836 A.2d 1096 (R.I. 2003). A detective testified that the state’s only eyewitness to a murder was not being truthful when he first stated that he could not identify the shooter. The state introduced this testimony to bolster the credibility of the witness who subsequently identified the defendant. R.I.S.C. vacated and remanded.

• Testimony constituted impermissible vouching because “it squarely addressed and bolstered another witness’s credibility.” Id. at 1109 (quoting State v. Miller, 679 A.2d at 872).

State v. Perez, 882 A.2d 574 (R.I. 2005). Trial court denied defense counsel’s motion to sequester state’s rebuttal witness, a psychiatric expert intended to refute defendant’s diminished capacity defense. R.I.S.C. affirmed.

• Defendant unsuccessfully argued that the presence of the state’s expert in the courtroom during defendant’s testimony would constitute impermissible bolstering when the expert testified later in the trial.

State v. Diefenderfer, 970 A.2d 12 (R.I. 2009). Defendant argued that admitting witness’s cooperation agreement into evidence constituted improper vouching for the witness’s credibility. R.I.S.C. upheld the trial court’s decision.

• Witness agreed to testify at trial in exchange for a sentencing recommendation from the state. “[T]he mere statement in the cooperation agreement that [witness] would testify truthfully coupled with her acknowledgment that she could be charged with perjury if she failed to do so does not constitute impermissible vouching and certainly does not require reversal.” Id. at 34.
• However, the court noted that, in some cases, “one means through which improper vouching may occur is by admission of plea agreements phrased in a manner that suggested that the government has special knowledge that its witness is speaking the truth.” Id. at 32-33 (quoting State v. Chakouian, 537 A.2d 409, 412 (R.I. 1988)).

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