US v. Weatherspoon
No. 03-10551 (5-6-05). The 9th reverses for prosecutorial misconduct, finding that the prosecutor's repeated use of "I believe..." and the fact that officers risked a perjury charge was improper vouching. The case arose from a felon in possession, where the defendant supposedly placed a gun beneath his seat in a car. There were two witness statements of passengers, each of whom had bias or motive to lie. One quickly recanted, stating that she was afraid she'd lose her children; the other had state charges and faced arrest. The 9th (Shadur) stresses that the vice of vouching comes from implying that he or she knows facts that the jury doesn't. While counsel should not say "I believe...." there is more risk when the prosecutor, with the prestige of the gov't behind him or her. Trott, in dissent, argues that the distinctions parsed are too fine, and that the vouching precedent of the 9th is impractical in the rough and tumble of a trial, where the jury knows that the prosecutor "believes" something even if he or she doesn't say those words, but substitutes instead "the evidence shows...."