Corpus delicti
• For more information about corpus delicti, please review Corpus Delicti.
Testimony of an accomplice
• When the prosecution relies upon the testimony of a coconspirator to obtain conviction of an accused, the coconspirator's credibility is an important issue in the case . . . .
Reed v. State, 748 N.E.2d 381, 388 (Ind. 2001)
• The fact that an accomplice may not be completely trustworthy as witness goes to the weight and credibility of the witness' testimony, something that is completely within the province of the jury and cannot be reviewed on appeal.
Allen v. State, 994 N.E.2d 316 (Ind. Ct. App. 2013)
• An accomplice's testimony is highly suspect and should be strongly scrutinized by the trier of fact.
J.J. v. State, 858 N.E.2d 244 (Ind. Ct. App. 2006)
Testimony of a victim in a sex case
• Uncorroborated testimony of rape victim was sufficient to support rape convictions.
See Swope v. State, 490 N.E.2d 736 (Ind. 1986)
• The uncorroborated testimony of the victim of a sexual attack, even if the victim is a minor is sufficient to sustain a conviction for child molesting.
Morrison v. State, 462 N.E.2d 78 (Ind.1984)
Other information
• [I]t is improper for the prosecutor to suggest that the defendant has the burden of proof by inquiring in closing argument why the defendant did not call a witness to testify on his behalf. Chubb v. State, 640 N.E.2d 44, 48 (Ind.1994). In the case at bar, the prosecutor called attention to the fact that Harrison did not call certain witnesses who could corroborate his story. This suggested that Harrison had the burden to prove that his version of events was true. Accordingly, we conclude that the prosecutor's comments were improper.
Harrison v. State, 901 N.E.2d 635, 644 (Ind. App. 2009)
Improper bolstering / improper vouching
• For more information about how improper bolstering and vouching can constitute prosecutorial misconduct, please review Prosecutorial Misconduct.
• Generally, improper bolstering occurs when evidence is introduced with the intent of lending official credibility to the government's witnesses or case.
United States v. Thomas, 510 F.3d 714, 724 (7th Cir. 2007)
• Use of materials to refresh witness’ recollection is permissible, and not improper bolstering, where materials used are not substituted for witness’ memory.
Molina v. State, 621 N.E.2d 1137 (Ind. Ct. App. 1993)
• Improper vouching is trying to bolster a witness's believability with ‘evidence’ that was not presented and may well not exit . . . improper vouching includes prosecutorial expressions of a “personal belief in the witness's truthfulness” but does not include a prosecutor's reminder to the jury “of evidence presented at the trial that tends to show that a witness was telling the truth.
United States v. Alexander, 741 F.3d 866 (7th Cir. 2014)
• There are two types of impermissible vouching: “a prosecutor may not express her personal belief in the truthfulness of a witness, and a prosecutor may not imply that facts not before the jury lend a witness credibility.”
United States v. Adkins, 743 F.3d 176 (7th Cir. 2014)
• [Where the prosecutor discussed the victim's credibility during closing by stating, "She's never been dishonest. She spoke to her parents, she spoke to the principal, she spoke to Detective White, and she gave a deposition. You better believe if there had been inconsistencies in any of her statements, [defense counsel] would have been down her throat about those when she testified. But he wasn't because there aren't any.... And to make clear that she gets nothing out of this. She doesn't want him to get in trouble; she wants him to want to be with her. And that's why what she told you was even more credible. Because if she thought she could get away with covering for him again, she would. But the jig is up; we've seen the Google Plus postings. The jig is up. She has to be honest now and she's done that.]
[I]n this case, other evidence suggests that [the victim] was telling the truth. The only evidence that [the victim] had been dishonest, to which [the victim] admitted at trial, was that she had lied to the defendant about physical and verbal abuse from her biological father; there was no evidence that [the victim] had been anything but truthful to her parents, the principal, the police, and the court. The prosecutor pointed to evidence that [the victim] was telling the truth now because, although she loved the defendant and had bias and motive not to testify against him, she could not counter the logs of their online conversations. The lack of evidence to corroborate [the victim's] substantive testimony about what happened does not counter the prosecutor's general assertions that [the victim]was telling the truth. There was no prosecutorial misconduct, much less fundamental error.
Ryan v. State, 9 N.E.3d 663, 672 (Ind. 2014), reh'g denied(emphasis added)
• [A] prosecutor may not personally vouch for a witness. But a prosecutor may comment on the credibility of the witnesses as long as the assertions are based on reasons which arise from the evidence.
Ryan v. State, 9 N.E.3d 663, 670-671 (Ind. 2014), reh'g denied
But compare the Ryan holding regarding ‘vouching’ to Bean v. State:
• Vouching testimony is specifically prohibited under Indiana Evidence Rule 704(b), which states: “Witnesses may not testify to opinions concerning intent, guilt, or innocence in a criminal case; the truth or falsity of allegations; whether a witness has testified truthfully; or legal conclusions.” This testimony is considered an “invasion of the province of the jurors in determining what weight they should place upon a witness's testimony.”
Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct. App. 2014)
• [Where the State had elicited improper vouching testimony from two witnesses, it was misconduct for prosecutor to reinforce the improper vouching testimony during closing argument by stating “we know what happened” . . . [because of what the vouching witnesses stated]
Bean v. State, 15 N.E.3d 12, 18 (Ind. Ct. App. 2014)
• It is violative of due process to use information from a presentence report to bolster in-court testimony.