• October 30, 2017

Imagine a lawyer saying the following in closing argument in a civil trial:

“Ladies and gentlemen of the jury, my mother is here today. She’s right there, sitting in back of the courtroom… [To his mother:] “Hi, Mom.”] [stage direction: old lady waves to beloved son]…My mom taught me something. Something very important. She taught me never to lie. I take that lesson very seriously and I do not lie…”

Is that proper in a closing argument? Is this treacle grounds for a mistrial? If you were opposing counsel would you object? Move for a mistrial? Ask for a “curative jury instruction”?

If you were a juror, would you conclude that the lawyer does not lie because of this manipulative, almost childish, ploy? Would you conclude just the opposite (“this guy must think we’re complete idiots and is a condescending clown”)? Would it affect your decision-making at all?

We heard of the use of this tactic in a recent Minnesota civil trial through the grapevine.

One lawyer in the conversation was adamant that this would be grounds for a mistrial, as a form of impermissible “vouching.”

One court has described two types of vouching:

The first—which is a problem only in criminal cases—is when the prosecutor places ‘the prestige of the government behind a witness through personal assurances of the witness’s veracity.’ The second kind of vouching, ‘problematic in both civil and criminal trials,’ is ‘relying on evidence outside the record.’

A classic example of vouching would be, “You heard what Ms. Jones said, remember her testimony? I have known Ms. Jones since Sunday School at Our Lady of Perpetual Advocacy and, I assure you, I have never heard her exaggerate, much less lie. She is as honest as the day is long…”

So, back to our Momma’s Boy scenario: do we have bright-line vouching?

We think not. At least not for sure.

But one can imagine that the scenario might lead to improper vouching if, after announcing his own commitment to absolute honesty, Momma’s Boy goes on to express his own belief in how persuasive and credible he found particular witnesses to have been…

One court has held that there is no bright-line rule about when vouching will result in reversal.

[The court] considers a number of factors including (1) the form of vouching, (2) how much the vouching implies that the [advocate] has extra-record knowledge of or the capacity to monitor the witness’s truthfulness, (3) any inference that the court is monitoring the witness’s veracity, (4) the degree of personal opinion asserted, (5) the timing of the vouching, (6) the extent to which the witness’s credibility was attacked, (7) the specificity and timing of a curative instruction, (8) the importance of the witness’s testimony and the vouching to the case overall. In the context of plain error review, the [appellate court] balances the seriousness of the vouching against the strength of any curative instruction and closeness of the case.

And here, linked, is an excellent analysis of improper vouching.

In our view, Momma’s Boy’s Ploy provokes a wince, a sense of disappointment and mild disgust at the obvious and manipulative tactic. On the other hand, closing argument is the pinnacle of lawyer theatrics. It is pure advocacy and juries are always told that “closing argument” is not “evidence.” As much as we condemn this twisted attempted manipulation of jurors’ sympathies and reasoning, it would seem to us that finding a mistrial, requiring a “do-over” of an expensive trial, gives too little credit to jurors. However, reasonable people might disagree.

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