Davis v. Cain

“In general, witness vouching in Oregon is considered prejudicial, so much so in fact that it sometimes requires intervention by the trial court even when parties fail to object to it.” State v. Sperou, 365 Or 121, 140, 442 P3d 581 (2019).

Davis assigned error to the post-conviction court's denial of relief on the basis that his counsel was ineffective. He argued that defense counsel did not object to the prosecution's opening statement that vouched for a witness. In response, the Superintendent contended that Davis's counsel not objecting was a logical decision and was rational given the context of the trial. “In general, witness vouching in Oregon is considered prejudicial, so much so in fact that it sometimes requires intervention by the trial court even when parties fail to object to it.” State v. Sperou, 365 Or 121, 140, 442 P3d 581 (2019). The Court found that there was no doubt that the prosecution vouched for their witness and that Davis's counsel “failed to exercise reasonable professional skill and judgment” by not objecting to the statement. The Court reasoned that vouching for a witness is so prejudicial that it could affect the outcome of a case, and if an objection was made, at the minimum the jury could have been given an instruction to mitigate the negative effects on Davis's case. The Court held that the post-conviction court erred in denying relief on the first claim.  Reversed and remanded as to first claim; otherwise affirmed.