State v. Kiesau

“The rule against prosecutorial vouching—i.e., prosecutors giving their personal opinions on the credibility of witnesses—is rooted in the principle “that counsel’s credibility opinions are not evidence and are sometimes based on facts not in evidence—thus, they tend to distract the jury from its duty to base its verdict on the evidence at trial.” State v. Sperou, 365 Or 121, 129, 442 P3d 581 (2019).

Defendant appealed a judgement of conviction for driving under the influence of intoxicants, ORS 813.010. Defendant assigned error to the trial court’s failure to instruct the jury that it must return a unanimous verdict, as well as the trial court’s denial of her motion for a mistrial after what the defendant characterized as prosecutorial vouching. On appeal, the court rejected defendant’s jury instruction assignment, due to the fact that the jury ultimately returned a unanimous verdict. Defendant argued that the prosecutor vouched for the credibility of the arresting officer during closing, by stating that the state possessed the credibility of their trooper. “The rule against prosecutorial vouching—i.e., prosecutors giving their personal opinions on the credibility of witnesses—is rooted in the principle “that counsel’s credibility opinions are not evidence and are sometimes based on facts not in evidence—thus, they tend to distract the jury from its  duty  to  base  its  verdict on  the evidence at trial.” State v. Sperou, 365 Or 121, 129, 442 P3d 581 (2019). As such, the court determined that the prosecutor’s statement did not equate to vouching. Affirmed.