Our Birmingham drug crimes defense lawyers know that thorough understanding of the rules of evidence is essential to proper defense at trial.
United States v. Rojas, a United States Court of Appeals for the First Circuit case, involves a defendant who was indicted for distributing cocaine on multiple occasions. The drug buys were made by an undercover agent who recorded the transactions on both audio and video.
According to court records, the recordings purported to represent cocaine being sold to the agent in exchange for cigarettes. Witnesses testified that the agent gave the substance he purchased to a detective who performed a field test for cocaine, which tested positive. There was also testimony that the substance tested positive for cocaine base during a full chemical analysis. At trial, however, there were problems establishing the chain of custody of the drugs, as well as gaps in the recordings that omitted statements allegedly made by the defendant.
The court recognized several errors on the part the prosecution. First, the government played portions of the recording for the jury during closing arguments that had not been not been admitted into evidence.
In addition to that serious error, the government also made inappropriate arguments to the defense closing argument during the government’s rebuttal.
In this case, despite objection of defense counsel, the court did not dismiss the case but issued a curative instruction to the jury that they should disregard the recordings erroneously before them and the vouching of the prosecuting attorney. This was an appeal based upon prosecutorial misconduct.
The nature of the inappropriateness of the comments is what criminal defense lawyers refer to as vouching. Vouching, which is strictly prohibited by the rules of evidence, is when a lawyer puts his or her own creditability before jury in place of the witnesses.
While this is a somewhat confusing issue, the best way to make sense of it is to look at the point of a closing argument. Many lawyers say that a closing argument is where the real case is made. It is in the closing argument that the lawyers get to speak directly to the jury and argue what they feel the evidence does or does not show.
However, there are a variety of rules that govern what is and what is not allowed during a closing argument. First and foremost, a closing argument is a summary of the evidence that has been submitted to the jury during trial. A lawyer cannot make any argument to the jury that is not supported by properly admitted evidence. If the recordings are not introduced at trial, they cannot be used or discussed in closing. The reason for this is that, during trial, the defense has a chance to make evidentiary objections, cross-examine witnesses, and offer contradictory evidence. At closing, there is no real way to rebut what the government has said if the jury does not have evidence of those statements to consider.
It is for that reason that two objections you are likely to hear during a closing are “arguing facts not in evidence” and “counsel is vouching.”