U.S. v. James William Smith (5th Cir, 14-60926), Reversal for Improper Bolstering
This is an excellent recent case out of the 5th Circuit, a circuit historically loath to reverse the convictions of criminal defendants. In this case—child pornography, no less—the Court addressed the Smith’s claim of improper bolstering on plain error review. Smith had to show 1) there was error, 2) it was plain on the face of the transcript, and 3) that the error affected his substantial rights. Smith complained of the following statements made by the prosecutor in closing argument:
(1) “Ms. Penix testified that it was not her. She is against child pornography. I’m totally convinced that that’s truthful.”
(2) “Mr. Jolly listened carefully to the questions and testified truthfully to what happened.”
(3) “I’ll try and suggest to you a number of reasons why I believe that he [Jolly] is worthy of believing.”
(4) “Unequivocally, truthfully, and corroborated by Ms. Penix.”
(5) “You’ve got to decide. And I think as you look at [Mr. Jolly’s] testimony, you can understand that when he testified he didn’t know anything about peer-to-peer networks and FrostWire, that he’s telling the truth.”
The prosecutor also asked, “[w]hat incentive is there for us to come in and try a person if he’s not the person that did the offense? What incentive is there, on the other hand, to hold [the defendant’s alibi] until the last possible minute and bring it in uninspected?”
As the Court made clear, these kinds of statements are prohibited. Prosecutors absolutely cannot make statements that inform the jury that the prosecutors know or personally believe their witnesses are telling the truth.
The Court found that Smith’s rights were substantially affected because the evidence against him was rather thin. He offered alibi witnesses, and witness credibility was a huge issue in the case. Under the facts of this case, the court found plain error and reversed.
Improper bolstering is also a significant issue in South Carolina. Recently, our Supreme Court reversed a sexual abuse case finding that a state’s expert invaded the “sole province” of a jury’s determining witness credibility by bolstering the testimony of the complainant. State v. Isaac Anderson, 413 S.C. 212, 776 S.E.2d 76 (2015). The take away here is that criminal law practitioners should be on alert to this issue as it is increasingly becoming fertile ground for reversals.