State v. Kiesau

It is impermissible vouching for a prosecutor to give their personal opinion of the credibility of their witnesses because the opinions are typically based on facts not in evidence which distracts the jury. See State v. Serous, 365 Or 121, 129 (2019).

Defendant appealed a conviction of DUII under ORS 813.010 and assigned error to the trial court’s denial of an order which asked the court to grant a mistrial. On appeal, Defendant argued that the prosecution’s statement “we have credibility of our trooper” constituted witness vouching.  In response, the State argued that the statements were acceptable in closing arguments. It is impermissible vouching for a prosecutor to give their personal opinion of the credibility of their witnesses because the opinions are typically based on facts not in evidence which distracts the jury. See State v. Serous, 365 Or 121, 129 (2019). The Court concluded that the prosecutor’s statements were not vouching, but rather, a permissible argument. The Court considered the statements in context and accordingly, the prosecutor cannot be “categorically prohibited from referring to the credibility of a witness.” Since the statements occurred in the context of a summary of the evidence established by the State, the Court reasoned that the prosecution linked the credibility of the trooper to the evidence presented, not a personal opinion. Affirmed.