When a Prosecutor's Questions Turns the Prosecutor Into a Witness (8/20/15)

A recent column in ABA Criminal Justice Magazine discussed the problems that a prosecutor may encounter when the questioning may turn the prosecutor from advocate to witness, thus violating the rule that a lawyer, particularly a government lawyer, cannot be a lawyer and a witness in a proceeding.  Stephen A. Saltzburg, Foreign Evidence and Tolling of the Statute of Limitations, 29 Criminal Justice 27 (Winter 2015), here (with article beginning on p. 34 of the pdf).  The rule is in Rule 3.7 of the Model Rules of Professional Conduct, quoted in the article.

The case discussed in the article is United States v. Rangel-Guzman, 752 F.3d 1222 (9th Cir. 2014), here.  The opinion is written by Judge Alex Kozinski, who has written some very good opinions in tax cases.  This case involved drugs, rather than taxes.  The gravamen of the issue was whether the prosecutor who had interviewed the defendant early in the investigation shaped her questions at the trial in a way that put her credibility on the line when the defendant testified differently from what her questions implied.  Judge Kozinski noted that government lawyers must be held to a high standard because of the natural tendency of jurors to believe in the honesty of government attorneys.  Judge Kozinski then reasoned:

The prosecutor made a number of statements that used variations on “but you told us” and “I asked you and you said,” as well as assertions of fact about what had occurred during the meeting: “Well, we went over and over it, Mr. Rangel,” “[D]o you remember last week I specifically asked you multiple times who accompanied you to the  Quinceanera?” And she left no doubt about her personal feelings during the meeting: “Don’t you remember that I was shocked that you were saying that it was four to five months before you got arrested [that you met Martha]?”  

When a prosecutor interviews a suspect prior to trial, the “correct procedure” is to do so “in the presence of a third person so that the third person can testify about the interview.” United States v. Watson, 87 F.3d 927, 932 (7th Cir. 1996). Here, Agent Baxter was present for the interview, so he could have taken the stand and testified that Rangel-Guzman had made the prior inconsistent statements. See United States v. Hibler, 463 F.2d 455, 461 (9th Cir. 1972).  

Instead of calling Baxter, the prosecutor became her own rebuttal witness. By phrasing the questions as she did, she essentially testified that Rangel-Guzman had made those prior inconsistent statements. Doing so clearly took “advantage of the natural tendency of jury members to believe” in a prosecutor, Edwards, 154 F.3d at 922, and required the jury to “segregate the exhortations of the advocate from the testimonial accounts of the witness,” Prantil, 764 F.2d at 553. And, because the prosecutor wasn’t actually a witness, Rangel-Guzman had no opportunity to cross-examine her about the accuracy or truthfulness of her account. 

There can be no doubt that the AUSA was asking the jury to choose whether to believe her or the defendant. This was highly improper and unfair to the defendant. 

* * * * 

We recognize the difficulty in identifying errors absent an objection. And we understand the district court’s reluctance to intervene when the opposing party, perhaps strategically, declines to do so. But the prosecutor’s invocation of her own personal knowledge during cross-examination was unquestionably improper. Even absent objection, the court should have recognized this and put a stop to it. See Henderson v. United States, 133 S.Ct. 1121, 1129–30 (2013).

On appeal, the Government conceded error in the questioning, but the Court affirmed because the defendant had not shown that the error affected the outcome of the trial.

Professor Saltzburg notes three lessons from the case:

1. Prosecutors can violate the advocate-witness rule without ever taking the witness stand.
2. Trial judges must be alert to protect against violations of the rule.
3. Defense counsel also must be alert to detect violations, must make timely and proper objections, and must understand that they violate their duty to clients when they fail to recognize that a crossexamination has become a kind of rebuttal that makes the prosecutor a witness. 

This particular type of questioning is not likely to occur in IRS administrative investigations, but it might arise from a proffer session in a grand jury case.  Federal prosecutors routinely have "note takers" at such proffer sessions.  In tax cases, the note-takers are usually IRS agents assigned to assist the grand jury investigation.  Their key function is to keep an accurate record of the important events during the session and be available to testify if the witness making the proffer is tried for obstruction or false statements or if the witness in prosecution for the substantive crime testifies differently than the substance of the proffer.

As Judge Kozinski notes, the way to rebut such testimony is to call the note-taker or, if a joint interview situation, the agent who participated in the interview.