Vouching For Witness Merits Post-Conviction Relief

A defense attorney who had failed to object to a prosecutor’s improper vouching for a child witness engaged in prejudicial error warranting the grant of post-conviction relief, held the South Carolina Court of Appeals in reversing the denial of such relief

In March 2016, a jury found Washington guilty of one count of first-degree criminal sexual conduct (CSC) with a minor, and he was sentenced to twenty-five years’ imprisonment.

Improper argument

The State’s comments were clearly improper vouching. The State stated, “I submit to you [Victim] was wholly credible” followed by assurances that all children of Victim’s age are not capable of lying and that children would “fold” under cross-examination if they were lying. The State’s assurances were broad, unsubstantiated claims unrelated to anything raised during the trial…

Further, the State used first-person language at the start of the comments—”I submit”—that suggested to the jury that the State held the opinion that Victim was telling the truth.

Mistake, not strategy

We hold the PCR court erred in finding trial counsel was not deficient by failing to object to the State’s closing argument because the State improperly vouched for Victim’s credibility. Trial counsel testified at the PCR hearing that he did not object to the comments because he did not believe the comments amounted to vouching for Victim. Though this court does not seek to second-guess the reasonable decisions of trial counsel, trial counsel still must articulate a valid strategy for his decisions.

Prejudice

trial counsel’s failure to object was prejudicial because there was no physical evidence of the alleged CSC and the only other evidence in the case required an assessment of the relative credibility of the witnesses.

Instructions no cure

Here, the jury instructions cannot cure the improper vouching by the State. First, the comments were extensive, and they posited not only that Victim was credible, but also that it was impossible for her to be untruthful. Unlike in Reyes,
this vouching was not fleeting and it occurred during the summation of the case. Even though the crucial instruction in Reyes—to view Victim’s testimony through a more suspect lens due to her minor status—was given here, it did little to cure the improper vouching because the vouching did not happen during Victim’s testimony. Second, trial counsel did not object at all. We have difficulty imagining how jury instructions could be curative when the jury was never made aware of the improper vouching.

(Mike Frisch)