It is tempting, and understandably so, for any lawyer to argue to the jury that an opposing witness is a “liar,” that the witness’ story is “malarkey,” or that the story given was “an insult to the jury’s intelligence,” as long as the proof supports those conclusions. But a recent 1st Circuit decision warns prosecutors of their special role and strongly condemns such language.
In United States v. Saad, the defendant challenged the following: “label[ing] Saad as a ‘good storyteller,’ say[ing] that Saad’s testimony was ‘malarkey,’ … call[ing] Saad’s third alibi ‘an insult to [the jury’s] intelligence[;]’…[and] calling [a defense witness] an ‘unmitigated liar’ and accusing him of perjury.” No. 17-1445, 2018 U.S. App. LEXIS 11147, at *19 (1st Cir. Apr. 30, 2018).
Although finding any error to be harmless due to overwhelming evidence of guilt, the Court of Appeals made clear the impropriety of such language:
Our circuit said the following some time ago about similar comments by a prosecutor in closing argument: “[t]hat these statements were improper is so clear as not to brook serious discussion.” That is because a “prosecutor’s obligation to desist from the use of pejorative language and inflammatory rhetoric is every bit as solemn as his obligation to attempt to bring the guilty to account.” Such statements can threaten the fairness of a trial, since, when a prosecutor “directly accus[es] a defendant of lying . . . jurors could believe the government has knowledge outside the evidence about the defendant’s veracity.”
We recognize that different circuits more recently have taken different views on a prosecutor accusing the defendant or defense witnesses of lying. Some circuits though have still noted the word “liar” itself carries even greater risks…All circuits agree that the prejudicial effect of the prosecution’s use of “liar” in closing argument depends on context…
The government, at oral argument, asked us to bless the use of the term “liar.” Times change, but we do not condone the use of that term. As the Fourth Circuit has said:
When a prosecutor comments on the veracity of a witness, the prosecutor’s statement presents two discrete risks: (1) of improperly suggesting to the jury that the prosecutor’s personal opinion has evidentiary weight; and (2) of improperly inviting the jury to infer that the prosecutor “had access to extra-judicial information, not available to the jury.”
The gravity of these risks is amplified in the case of a criminal defendant exercising his constitutional right to testify in his own defense.
This is not a ban on all comment. Indeed, the Saad court noted that there is less harm in branding a particular statement “a lie” than labeling the witness “a liar.” But why go there? Isn’t the advocacy equally compelling when the witness’ testimony is juxtaposed to the clear facts? An advocate need only say “as jurors you have tremendous power and may believe anything you want, but before you decide whether to believe what the defendant told you, ask yourselves if it deserves belief after the video, the DNA and the 12 witnesses who told you something else.”
Saad does not stand in isolation. It is a powerful reminder of the special role of the prosecutor and the need to advocate eloquently but fairly.
On the subject of the word “liar,” prosecutors also need to be wary of asking a testifying defendant whether those who testified for the government lied. Here is a cogent reminder why:
After establishing that Joiner denied stealing the handgun, and that Joiner heard the officers testify that he confessed to the crime, the prosecutor asked, “So are you saying here to the jury that [the officers] lied on that day[?]” Defense counsel objected, arguing that it was improper for the prosecution to ask Joiner to comment on the officers’ credibility. The trial court overruled the objection, and Joiner answered, “Yes.” The prosecutor then asked, “Yes or no, do you believe that [the officers] made this up on you?” Joiner again answered, “Yes.”
Generally speaking, it is improper for a prosecutor to question a criminal defendant on the credibility of the witnesses against him because “credibility determinations are meant for the jury, not witnesses.” We allow such questioning only in limited circumstances, such as when a defendant “open[s] the door by testifying on direct that another witness was lying.” That circumstance is not present here. It was therefore improper for the prosecutor to ask Joiner whether he believed the officers testified untruthfully.
United States v. Joiner, No. 16-6833, 2018 U.S. App. LEXIS 5825, at *5-6 (6th Cir. Mar. 8, 2018).
One final cautionary note. It has repeatedly been held improper for a prosecutor to argue that a police witness would not lie because otherwise the officer might be fired or disciplined.
[A] prosecutor improperly vouched for the credibility of a police officer when he implied that the officer “had a motive to testify truthfully because to testify falsely would expose him to the penalties of perjury and lead to adverse consequences to his career as a police officer.” Similarly…a prosecutor improperly vouched for the credibility of two police officers when she argued that they would not lie, because they did not want to lose their jobs…[A] prosecutor improperly vouched for the credibility of two detectives when she told the jury that they would not lie, because they had “a lot to loose [sic] by making things up, pensions, credibility, livelihood.”
Poole v. State, No. 2400, 2017 Md. App. LEXIS 936, at *77 (App. Sep. 13, 2017).
The takeaway? Argue factually, not pejoratively or speculatively.