Monday, May 08, 2006

Vouching is vouching

Sometimes, from the way prosecutors talk, it seems like the KSC must be the only court in the world that has ever thought that prosecutors ever engage in misconduct. In U.S. v. Harlow, although deemed harmless, the Tenth Circuit held that introduction of a plea agreement including a truthfullness provision coupled with evidence that the government had fulfilled its end of the bargain, constituted improper vouching:
Sections 16(d) and 13 are more problematic. Section 16(d) clearly states the government will recommend a downward sentence departure if the witness "fully, completely, and truthfully" testifies and that the reduction will be "due to his ongoing truthful testimony and truthful cooperation with law enforcement authorities." This provision coupled with the introduction of the government's Rule 35(b) motion implies that the government has verified the truthfulness of the witness and believes that his ongoing testimony is truthful, which is why it made a motion for a sentence reduction. The jury could reasonably infer that the government would not have recommended such a downward departure if it had not independently verified the truthfulness of the testimony. This conclusion would be undermined if the government recommended a sentence reduction for testimony given in an unrelated event, but such is not the case here. The three witnesses were given sentence reductions in exchange for their testimony in a series of trials all relating to the same underlying methamphetamine drug conspiracy. The combination of section 16(d) with the introduction of the government's Rule 35(b) motions amounts to prosecutorial vouching.

Section 13 only compounds the matter. Not only does it reiterate the role of the government in recommending sentence reductions for truthful testimony, it also implicates the judge in the verification process.

Misconduct is misconduct. Maybe the KSC is more willing to give teeth to the rules regarding vouching by lawyers, but the misconduct is the same.

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