Trial attorneys have to decide whether to object to arguments presented by the opposing attorney in closing arguments to a jury, or balance whether they think an argument is legally improper with highlighting damaging arguments. Whether a prosecutor was simply arguing the credibility of a witness, as opposed to improperly “vouching” for that witness, was explored by Maryland’s Court of Special Appeals in an unreported opinion issued last week in a case called State of Maryland v. Kevin Stewart.
The evidence at trial, presented through testimony of the victim, was that she knew Stewart and went into a house with him and two other men, who proceeded to rape her at gunpoint. The defendant testified that he was present in the home, but did not participate in or see a rape. Stewart was convicted by a jury of rape, kidnapping and use of a handgun in felony. After his conviction was originally upheld on appeal, he filed a petition for post-conviction relief, arguing that he received ineffective assistance of counsel in violation of his Sixth Amendment rights because his lawyer at trial failed to object to some things the prosecutor said in closing argument.
The defendant challenged statements by the prosecutor, in which he said that the victim “told it like it is,” was “a dream witness” who did not need to be led in her testimony, that no one could make up a story like that and that she told the truth. The trial Court agreed that this amounted to “vouching” for the witness, that the defense attorney’s performance was defective for not objecting, and ordered a new trial.
Judge Raker in authoring the Court’s opinion wrote: “Vouching occurs when the prosecution makes personal assurances of the witness’s veracity or suggests that information from outside the trial supports the witness’s testimony.” Doing so may constitute substituting the prosecutor’s judgment for that of the jury and deprive the defendant of a fair trial. The appellate court noted that to establish ineffective assistance of counsel, the defendant must show that his lawyer’s performance fell below the standard of reasonableness and prejudiced the defendant’s case.
The appellate Court agreed with the testimony of the defense counsel at the post-conviction hearing that this argument of the prosecutor was not improper vouching, did not stray from the evidence at trial and was fair argument as to the credibility of the key witness for the State at trial. The convictions were reinstated.
Thomas Patrick Ryan is a partner in the Rockville law firm of McCarthy Wilson, which specializes in civil litigation.