The most difficult cases for juries in criminal cases are the credibility issues arising between testimony of the defendant and the law enforcement officer who made the arrest, search, or related a confession. Lacking corroborative evidence, the jury must decide which witness to believe, but jurors consider more than just the testimony. They consider witness demeanor, attitude, recollection, inconsistent statements, and innumerable other intangible issues. Cases sometimes are a year old because the defendant fled the scene, or some other factor affecting the testimony for an officer who may have had a hundred other arrests since the case now on trial. Obviously the crime and arrest report help the memory but certainly not all the detail.
Alcantara-Castillo is an example of witness credibility. The defendant was charged with illegal entry into the United States after having been arrested by agents of the Border Patrol. Twelve jurors found the defendant guilty beyond a reasonable doubt in the district court trial. Only the agent (and his colleagues) and the defendant testified. The defendant appealed on the ground of prosecutor misconduct. Without rewriting the testimony of the defendant who was cross examined by the prosecutor, the witness failed to directly answer whether the border agent had “invented” the facts in his testimony. Secondarily, the prosecutor in his closing argument agreed the case was a credibility contest and said his witness had undertaken the officer’s sworn duty to uphold the law, implying the officer would tell the truth. The trial court sustained the defense objection and ordered the jury to disregard this statement.
The courts all agree the prosecutor cannot vouch for the officer’s credibility but what constitutes “vouching” is not easy to determine. This subject is particularly difficult for appellate court judges who have never tried a case. As in this one. Two out of the three court judge panel opined that the jury “might have” reached a different result if the prosecution questions had not been asked and the vouching statement made. Apparently the jury was convinced by the evidence, considered the defendant’s record of five prior illegal entries, and who testified he thought he was under the influence of drugs and stopped by the agent in Mexican territory. By who? An American Border Patrol agent.
The 9th Circuit reversed the conviction in a 2-1 opinion without hearing a word of testimony; without seeing either of the witnesses; ignoring a 5 time loser and drug addict on the two grounds alleged, one of which the judge ordered the jury not to consider in a curative instruction.
A three judge 9th Circuit panel acknowledged that the jury listened to the two different stories. The jury heard the testimony of the defendant and the agent; watched their respective demeanor; considered all the evidence, not just the two prosecution alleged mistakes, and found the defendant guilty. Obviously the jury believed the officer and the tiny legal mistakes, one corrected by the judge, made no difference.
.Now the government will have to retry the defendant on a case so easy (five convictions for re entry; an admitted drug user; the comical location of his arrest) that the jury probably just laughed at the excuse. The jury “might have reached a different result” said the majority.
Courts of Appeal are supposed to decide legal questions, mostly procedural, or Constitutional in some cases, but not fact questions and speculation on what a jury “might” do. By selecting and isolating minor issues in a multi day trial, the court can find some reason for reversal. Another case is ready for rehearing.