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Smith v. State12/22/2000
that. Three, which really comes home, you're saying that I'm a liar."
In finding that the trial court erred in overruling the defendant's objection to this comment, the court explained:
"The prosecutor's statement was tantamount to stating his personal opinion or belief regarding the accused guilt. It was also an argument which put the prosecutor's own credibility in issue. It is never proper for the prosecutor to state his belief in the guilt or innocence of the accused. Adams v. State, 280 Ala. 678, 198 So. 2d 255 (1967). Similarly, the prosecutor must not argue his own credibility to the jury; that is a condemned practice, Waldrop v. State, 424 So. 2d 1345 (Ala.Cr.App. 1982), and is unconscionable. This is just such `an insinuation, suggestion, or assertion of personal knowledge' as was addressed in Berger [v. United States, 295 U.S. 78, 88 (1935)]. To tell the jury that they cannot find the accused not guilty without calling the district attorney a liar is a bullying tactic which will result in reversal." 494 So. 2d at 857. See also Moseley v. State, 448 So. 2d at 456 ("we must emphasize the line of cases decided by this court in which we have held that it is highly improper for attorneys, particularly prosecutors, to state their personal opinions in closing argument").
"`"While counsel may properly argue as to the weight and sufficiency of the evidence and the credibility of witnesses from the evidence if he neither says nor insinuates that the statement is based on his own personal knowledge or anything else besides the witnesses' testimony at the trial, it is not proper for him to take the position of an unsworn witness as to credibility. Thus, statements by counsel arguing the witness' credibility from his official position or occupation, or counsel's personal acquaintance with the witness, usually for some stated duration of time, are quite regularly construed as reversible error, usually on the ground that such comment constitutes unsworn testimony by counsel." 75 Am.Jur.2d, Trial § 306 (1974).'" Arthur v. State, 575 So. 2d 1165, 1181 (Ala. Crim. App. 1990) (quoting Clark v. State, 462 So. 2d 743, 747 (Ala. Crim. App. 1984) (Bowen, P.J., concurring)). See also Woods v. State, 19 Ala. App. 299, 301, 97 So. 179, 180 (1923) (quoting with approval the following: "`The right to a fair and impartial trial is violated by the misconduct of counsel in stating to the jury facts not in evidence because by so doing he fraudulently testifies without having been sworn as a witness.'").
The following summarizes the rationale for finding that the prosecutor's remark was highly improper:
"The unsworn witness rule poses more subtle problems in our efforts to preserve the right to a fair trial. This rule had no definitive contours, but generally stands for the proposition that the prosecutor may not inject his own credibility into the trial. Thus, we have reversed convictions where the prosecutor, to the prejudice of the defendant, has expressed his personal belief on matters which may influence the jury, has argued his own credibility on summation, has vouched for the credibility of the People's witnesses, or has, by cross-examination, suggested the existence of facts not in evidence. The primary rationale for so limiting the prosecutor's conduct is rooted in a concern that the criminal process be fair. Such conduct on the part of the prosecutor amounts to a subtle form of testimony against the defendant, as to which the defendant may have no effective means of cross-examination. Hence, the rule is founded upon the possible danger that the jury, impressed by the prestige of the office of the District Attorney, will accord great weight to the beliefs and opinions
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