SNITCH'S VOUCHING NOT SO BAD, SAYS NINTH CIRCUIT COURT OF APPEAL
Vouching is always bad. It is particularly bad when a snitch tries to gain credibility by vouching that the prosecutor would rip up his plea agreement up if he lied. Right. Like all prosecutors are honest, and they never play to win, right? Wrong. (See my post on this blog regarding Dirty Tricks in the Crime Lab in San Diego and Prosecutorial Misconduct in San Diego).
The Ninth Circuit agreed that vouching is bad. But although it finds such bolstering here, it ultimately holds that such vouching is harmless. Right.
Still, this is an interesting and useful opinion. The Ninth Circuit unequivocally states that the usual questions of a cooperating witness about why they have to tell the truth (i.e. "because I promised and if I lie, the AUSA will tear up the plea and I'll do more time") is vouching and impermissible.
But the Ninth Circuit then goes on to say that this mild form was cured by the court's curative instructions about cooperating witnesses and the overwhelming guilt.
The overwhelming guilt (i.e. lack of prejudice) also plays into the excusing the more serious form of vouching that occurred when the government bolstered its wiretap evidence by eliciting testimony about how DOJ and the courts had to approve such an application. This gave the impression that the defendant was guilty as determined by the agency and court. Again, this is excused only because of the overwhelming evidence.
Question: Did either the District Court or the Ninth Circuit send this prosecutor who engaged in both the mild and muy caliente forms vouching off to the state bar so that he wouldn't try to get away with it again?
U.S. v. Brooks, No. 05-30261 (11-29-07).
