This post examines a recent opinion from the Alaska Court of Appeals: Kim v. State, 2017 WL 727128.
The court begins the opinion by explaining that
Young Jae Kim was convicted of third-degree theft
for stealing a computer from the University of Alaska and then making a false
report to the police officer who was investigating the missing computer. Kim told the officer
that someone had stolen the computer from
him while he was in the university library.
Kim v. State, supra.
The Court of Appeals went on to explain how, and why, the
prosecution arose:
Kim was a student at the University of
Alaska Anchorage. In March 2010, he checked out a laptop computer from
the university on a long-term student loan. Two years later, Kim reported that
this laptop had been
stolen from him on June 15, 2012 when he briefly left the laptop unattended in the
university library.
Using a monitoring program, the
university was able to locate the laptop at
the home of George Yates. When Yates was contacted, he told the university
police that he had seen the computer advertised
on Craigslist, and that he had purchased the laptop for $ 60 from a man named Samuel Choe. According to
Yates, he purchased the computer
around the same time that Kim claimed that the laptop was taken from him at the
library.
University police officer Roger
Frierson then interviewed Samuel Choe. Choe admitted selling the laptop to Yates, but he was
reluctant to reveal how he acquired the laptop. The officer informed Choe that the laptop was stolen, and that he
(Choe) could get in trouble for trafficking in stolen goods. Choe declared that
he had not known that the laptop was
stolen, and he then told the officer that he had received the laptop from his friend Kim as
collateral for a loan that Kim had taken out from Choe. According to Choe, Kim
failed to repay the loan, so Choe sold the laptop to Yates.
Frierson interviewed Kim and told Kim
what he had already learned through his investigation, including what Yates and
Choe had said. Kim continued to assert that the laptop had been stolen from him at the library.
The police, and later the district
attorney's office, concluded that Kim's story was false, so the State charged
Kim with third-degree theft for pledging the laptop to Choe as collateral for the loan, and with making a
false report to the police for declaring that the laptop had been stolen.
Kim v. State, supra.
The Court of Appeals goes on to explain that, in his appeal,
Kim argued
first that the judge at his trial
improperly allowed the investigating officer to offer his opinion concerning
the credibility of Kim's version of events and a competing version of events
offered by one of the State's witnesses. Kim next claims that the prosecutor
engaged in improper behavior when, during her cross-examination of Kim, she
asked Kim whether he was telling the truth and the State's witness was lying.
Kim v. State, supra.
The court went on to analyze Kim’s first argument, e.g.,
that the trial judge erred when he let the officer who investigated the case to
give “his opinion concerning the credibility of Kim's version of events and a
competing version of events offered by one of the State's witnesses.” Kim v. State, supra. It began its analysis
by explaining that
[a]t Kim's trial, Officer Frierson
testified about his investigation into the report of the stolen laptop. During this testimony,
Frierson told the jury that when he interviewed Kim, he concluded that Kim was
lying about the laptop being
stolen from the library. According to Frierson, the `real theft’ occurred when
Kim pledged the laptop as
collateral for the loan. Frierson also testified that, during his earlier
interview with Choe, he concluded that Choe had not known that the laptop was stolen, and that Choe
was acting in good faith in trying to help the officer.
Kim's attorney did not object to any of
this testimony, or to the prosecutor's questions that elicited this testimony.
But on appeal, Kim claims that the officer's testimony was improper.
Kim v. State, supra.
The Court of Appeals began its analysis of this issue by
explaining that
[w]e agree with Kim that it was
improper for Officer Frierson to testify that he thought Choe was telling the
truth about the laptop and that Kim was lying.
This Court has repeatedly condemned
allowing a witness to act as a “human polygraph”—i.e., allowing a witness to
offer a personal opinion about the credibility of another witness's prior statements
or testimony. Other courts have done the same.
We have expressed particular concern
when the testifying witness is a law enforcement officer, because `jurors may
surmise that the police are privy to more facts than have been presented in
court, or [jurors] may be improperly swayed by the opinion of a witness who is
presented as an experienced criminal investigator.’
Those concerns apply in this case.
Officer Frierson testified that he had been a police officer for almost nine
years. He further testified that he had been the investigating officer in this
case, and that the investigation had been `pretty lengthy,’ taking
approximately six weeks. From this, the jurors might surmise that Frierson had
some reason for believing Choe over Kim that had not been introduced into
evidence. The jurors might also be swayed by the opinion of a witness who was
presented as an experienced criminal investigator. We therefore conclude that
Officer Frierson should not have been permitted to testify as to whose story—Kim's
or Choe's—he thought was more credible.
Kim v. State, supra.
The court goes on to explain that
[b]ut although Frierson's testimony on
this point was improper, we conclude that this testimony did not prejudice the
fairness of Kim's trial. The information that Frierson based his opinion on—the
information gleaned from his investigation—had already been introduced into
evidence at Kim's trial, and the jury was therefore already acquainted with the
evidentiary basis of Frierson's opinion about the relative credibility of Choe
and Kim. In addition, both Choe and Kim testified at Kim's trial, and both were
extensively questioned regarding their descriptions of what happened to the laptop. Thus, the jurors could make
their own evaluation of Choe's and Kim's credibility.
Given this record, we conclude that
Frierson's testimony, although improper, did not constitute plain errorrequiring reversal of Kim's convictions.
Kim v. State, supra.
The Court of Appeals then took up the second issue, i.e.,
whether it was “error for the
prosecutor to ask Kim if he was contending that Choe's description of events
was a lie”. Kim v. State,
supra. It began its analysis of this issue by explaining that
[w]hen Kim took the stand at his trial,
he testified, consistent with his earlier statements, that the laptop was stolen from him at the
library. When the prosecutor cross-examined Kim, she asked him a series of
questions that highlighted the fundamental discrepancy between Kim's assertion
that the laptop was
stolen and Choe's testimony that Kim had given him the laptop as collateral for
a loan.
Toward the end of this series of questions,
the prosecutor asked Kim, `Are you saying that Mr. Choe is lying?’, and `Are
you lying, or is he lying?’ Kim replied that he was not lying and that Choe was
the one who was lying.
Kim's attorney did not object to these
questions. But, on appeal, Kim argues that it was plain error for the trial
court to permit the prosecutor to ask these questions, because Kim was then
forced to offer an opinion about the credibility of another witness (i.e.,
Choe).
Kim v. State, supra.
The court goes on to explain that
[a]s discussed in the preceding section
of this case, Alaska courts have often condemned allowing witnesses to comment
on the veracity of another witness's testimony. But we have never ruled on
the specific issue presented here: the propriety of so-called `were they lying?’
questions—that is, the propriety of asking one witness whether another witness
was lying during their in-court testimony when both witnesses claim personal
knowledge of the underlying factual issue.
A majority of jurisdictions to reach
this question have adopted a bright-line rule against `were they lying?’
questions, particularly when they are directed against defendants or defense
witnesses. There are a number of reasons to favor this bright-line
approach.
Kim v. State, supra.
The opinion goes on to outline the reasons in question:
First, such questions offer little, if
any, probative value because they seek information beyond the competency of the
witness—i.e., they require the witness to speculate as to another
witness's state of mind. As one court has explained, `where the witness
expresses a belief as to the veracity of another witness, that statement of
belief is simply irrelevant; it does nothing to make the inference that another
witness lied any more or less probable.’
Second, as some courts have noted:
`the predominate, if not sole, purpose
of such questioning is simply to make the defendant look bad. . . . If the
defendant says the other witness is lying, then the defendant
is put in the [unenviable] position of calling someone a liar. . . . If the
defendant says a contradictory witness is not lying, then a
fair inference is that the defendant is lying.’
And even if making the defendant look
bad is not the purpose of the question, it `appear[s] to be the general effect.’
Third, the form of the question `ignores
numerous alternative explanations for evidentiary discrepancies and conflicts
that do not involve lying.’ For example, `differences in opinion, lapses
or inaccuracies in memory, differences in perception, a misunderstanding, or
any other number of wholly innocent explanations’ may explain the discrepancy
between the testimony of the two witnesses. A `were they lying?” ‘type of
question falsely reduces these various explanations to the single option of
intentional deception.
Fourth, `these questions infringe upon
the province of the fact-finder and risk distracting the fact-finder from the task
at hand’ which is to determine whether the State has proved its case beyond a
reasonable doubt. It is the jury, and not the prosecutor or the testifying
witness, that is tasked with making credibility determinations. `Were they
lying?’ questions falsely imply `that the fact-finder must determine one or
more of the witnesses is lying.’ This has the effect of distorting the
government's burden of proof, because `the fact-finder may assume that an
acquittal turns upon finding that the [government's] witness . . . lied.’
Kim v. State, supra.
The Court of Appeals then went on to address the fifth and
final issue, i.e.,
[f]inally, `were they lying?’ questions
have been criticized for being argumentative. As one court has noted, `anytime
[an attorney] asks a defendant to comment on the truthfulness or explain the
testimony of an adverse witness, the defendant is in effect being pitted
against the adverse witness. This kind of argumentative questioning is
improper.’
Despite the many problems with `were
they lying?’ questions, a minority of courts have declined to adopt a
bright-line rule. These courts express general disapproval of these types of
questions, but they approach each occurrence on a case-by-case basis. The
minority approach therefore leaves room for trial court discretion when the
competing testimony is truly irreconcilable and the only reasonable inference
is that one witness is lying. As these courts have noted, in such
circumstances, a “were they lying” question does not falsely reduce the various
explanations for the discrepancy in witness testimony to intentional
deception—because intentional deception is the only reasonable explanation. Instead,
the question only forces the defendant to acknowledge what the jury must have
already realized—that the defendant is implicitly accusing another witness of
lying.
Although we agree that `were they
lying?’ questions should be disfavored and rarely (if ever) permitted, we
conclude that this case does not require us to decide whether to adopt the
majority bright-line approach or the minority approach. Instead, because there
was no objection to the `were they lying?’ question in this case, we need only
determine whether the particular question asked in this case rose to the level
of plain error.
Here, the jury heard both Kim's and
Choe's testimony, and it would have been obvious to the jury that there was no
other reasonable way to reconcile the stories of Kim and Choe—either Kim was
lying or Choe was lying. The prosecutor's question therefore simply made
apparent what the jury would have already realized—that this case turned on
their determination of Kim's and Choe's credibility. Given these circumstances,
we conclude that the prosecutor's question did not prejudice Kim's substantial
rights, and Kim has not shown plain error.
Kim v. State, supra.
For these and other reasons, the Court of Appeals affirmed
Kim’s conviction. Kim v. State, supra.
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