Can a prosecutor vouch for the credibility of a witness by referring to evidence outside the record?

California, United States of America


The following excerpt is from People v. Bolden, D074574 (Cal. App. 2019):

"A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. [Citations.] Nor is a prosecutor permitted to place the prestige of [his or] her office behind a witness by offering the impression that [he or] she has taken steps to assure a witness's truthfulness at trial. [Citation.] However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the 'facts of [the] record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief,' [his or] her comments cannot be characterized as improper vouching." (People v. Frye (1998) 18 Cal.4th 894, 971 (Frye), italics added.)

"It is settled that making a record of the terms of a plea agreement requiring a witness to tell the truth does not constitute impermissible vouching." (People v. Williams (2013) 56 Cal.4th 165, 193 (Williams II).) "[T]he existence of a plea agreement is relevant impeachment evidence that must be disclosed to the defense because it bears on

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the witness's credibility. [Citation.] Indeed, . . . 'when an accomplice testifies for the prosecution, full disclosure of any agreement affecting the witness is required to ensure that the jury has a complete picture of the factors affecting the witness's credibility.' " (People v. Fauber (1992) 2 Cal.4th 792, 821 (Fauber).)

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