The Sixth Amendment to the US Constitution affords a criminal defendant the right to a trial by an impartial jury. The right to an impartial jury is a concrete limitation on the conduct and behavior of government prosecuting attorneys. In general, prosecutors cannot violate ethical and procedural rules and cannot make improper suggestions, insinuations and assertions calculated to mislead or inflame the jury’s passions. These forbidden behaviors fall under the general rubric of “prosecutorial misconduct.” If there is prosecutorial misconduct during a trial, the criminally accused has been denied a fair trial if the misconduct was prejudicial. As such, prosecutorial misconduct can be the basis for obtaining a new trial or having a conviction overturned in post-conviction proceedings. To be the basis for a new trial or the overturning of a conviction, two elements must be shown:

• The behavior/remarks of the prosecuting attorney must be improper and
• The behavior/remarks must prejudicially affect the substantial rights of the defendant

An example of prosecutorial behavior/remarks that might satisfy the first element above is improper vouching for a witness. In general, prosecuting attorneys cannot enhance the credibility of a witness by vouching for the witnesses’ credibility. Improper vouching can be either explicit or implicit. Explicit vouching occurs when the prosecution places the prestige of the government behind the witness, by, for example, making explicit personal assurances to the jury of the witness’ veracity. So, a prosecutor may not say: “I believe the witness is telling the truth.” Implicit vouching occurs when a prosecutor vouches for the witness’ veracity by indicating that information not presented to the jury supports the testimony. So, a prosecutor may not say: “There is a whole box full of evidence in my office that proves the witness is telling the truth” if that box full of evidence has not been presented at trial.

To succeed on the second element — prejudicial affect — a criminal defense team must show a reasonable probability that the outcome of the case would have been different, but for the improper vouching.

Note that the doctrine of improper vouching does not forbid the government prosecutors from arguing witness credibility to the jury. Rather, credibility must be argued on the basis of the evidence presented, not based on the personal beliefs of the prosecuting attorney or based on evidence that has not been presented at trial.

Importantly, when arguing that there has been improper vouching, a criminal defense team does not need to demonstrate intent. That is, succeeding on a claim of improper vouching does not require a showing that the government prosecutor made the comments in bad faith or with the intent to affect the outcome of the trial. That is good, because proving bad faith and intentional conduct can be very difficult. It is also good because intent should have no bearing since whether done purposely or accidentally, improper vouching deprives a criminal defendant of a fair trial.

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