Quick – what's the biggest mistake that tv lawyer shows make when portraying trials (I know, I know – where do you begin?) A recent decision by the First Circuit, U.S. v. Gentile, 09-1431, [http://www.ca1.uscourts.gov/cgi-bin/getopn.pl?OPINION=09-1431P.01A], highlights one of them: vouching.
This is a drug case originating in Maine, and the decision was by the First Circuit newbie from Rhode Island, Judge Thompson. Prosecutorial misconduct was alleged, and, as is often the case, the court ruled that some things were misconduct, and the things that were, weren't so severe as to flip the conviction. In identifying the no-nos in closing, Judge Thompson included a discussion of the vouching point – put simply, the prosecutor isn't supposed to say "I":
– "Although the prosecution's success often depends on its ability to convince the jury of a particular witness's credibility, it cannot entice the jury to find guilt on the basis of a [government] agent's opinion of the witness's veracity." (citing United States v.Pérez-Ruiz, 353 F.3d 1, 13 (1st Cir. 2003).);
– citing United States v. Torres-Galindo, 206 F.3d 136, 143 (1st Cir. 2000)("The prohibition of improper vouching is intended to keep the government from inviting a verdict based on facts not before the jury or on a prosecutor or government witness's personal assurance ofcredibility.")
– Noting that the Government conceded that the AUSA "would have been better advised to avoid using the pronoun 'I' or describing how he would characterize the informants' cooperation.", citing United States v. Smith, 982 F.2d 681, 684 & n. 2 (1st Cir. 1993)(prosecutor's use of "I think" during closing argument was improper); and United States v. Auch, 187 F.3d 125, 131 (1st Cir. 1999) (even though prosecutor's statement did not use "I think" language, statement conveyed a personal opinion to the jury and was therefore improper).
In sum, prosecutors shouldn't use the "I" word in their closings. This is pretty black letter law. But when have you seen a show in which the counsel didn't use "I" in their closings 9or openings, or directs or cross-examinations?)
It's very hard, as a general matter, not to say "I." "I"-ing isn't a good thing in any legal argument, e.g., an oral argument before the SJC. But it's how we tend to speak. If someone asks a question, we might answer "I think X." We shouldn't. (Well, we should think, but not say that's what we are doing).
We use these words orally in part because we are stalling for time – these are what I [it's a blog, it's ok] call noise words. There are lots of linguistic tics that shouldn't be included in any presentation to the court. In a brief, it's easier to pick these up, but I often find myself arm wrestling with co-counsel on the inclusion of noise words as intro transition parts of a sentence, like "furthermore," "it is very clear" etc., or sprinkles of adjectives and adverbs ("simply," "clearly" "obviously").
Aside from thinking that this is good rhetoric, some lawyers believe that these words are necessary to slow the reader down to absorb the substance of the argument. But noise words, empty of content, are not the solution to this problem. Writing short, crisp declarative sentences is the answer.
All of this is of course easier said than done. I remember listening to a tape of Jean-Paul Sartre, of all people, rattling along in French discussing his philosophy, and noting that he had the verbal tic of saying "c'est a dire que" ("that is to say that") ALL THE TIME. Sort of the philosopher equivalent of the Valley Girl "you know."
Be brutal! Get out your scalpel and your Strunk & White and get to work!
I look forward to my participation on Wednesday at an MSBA seminar in Freeport on drafting pleadings and motions, and hearing what Justice Levy has to say about these and other points on appellate briefing.