Ethics Watch

• Jurisdiction: South Carolina,United States
• Pages: 15
• Citation: Vol. 35 No. 1 Pg. 15
• Publication year: 2023

ETHICS WATCH Vol. 35 Issue 1 Pg. 15 South Carolina Bar Journal July, 2023

ETHICS WATCH

The Prohibition on Vouching

By Nathan M. Crystal

In everyday life we frequently rely on the opinions of others in making decisions. Employers seek recommendations when evaluating candidates for employment; universities and law schools require applicants to submit multiple letters of recommendation to support their applications; investors rely on opinions of advisors in making investment decisions; internet platforms recommend vendors of goods and services or publish the reviews by customers that purchased the goods or services for information and reliance by other potential customers. Yet, in at least one corner of life - litigation - recommendations are strictly forbidden, and when they occur can invalidate the entire proceeding. I am referring to the prohibition in both criminal and civil litigation against "vouching." But what does the term "vouching" mean, why is it improper, how is the concept applied, and what remedies are available for violation of the rule? The recent case of State v. Busse, 886 S.E.2d 208 (S.C. 2023), gives the opportunity to examine this concept.

What does the term "vouching" mean and why is it improper?

The South Carolina Supreme Court has defined "vouching" in the context of a criminal case as follows:

Vouching constitutes an assurance by the prosecuting attorney of the credibility of a Government witness through personal knowledge or by other information outside of the testimony before the jury. State v. Kelly, 343 S.C. 350, 368, 540 S.E.2d 851, 860 (2001), rev'd on other grounds, 534 U.S. 246 (2002) (quoting from United States v. Walker, 155 F.3d 180 (3^rd Cir. 1998).

The prohibition against vouching is the general rule, not unique to South Carolina, as the cite to the Walker case indicates. See also State v. Sperou, 442 P.3d 581 (Ore. 2019) (referring to the "vouching rule").

While vouching issues arise most often in criminal cases, the rule applies to civil cases as well. See Draper v. Rosario, 836 F.3d 1072 (9th Cir. 2016). Vouching is also an ethical violation. SCRPC 3.4(e) provides that a lawyer shall not

in trial . . . assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.

Since recommendations are so common and well-accepted in ordinary life, what is so bad about vouching in litigation? The Supreme Court in State v. Kelly, supra, again quoting from United State v. Walker, gave the following explanation for the vouching rule:

A prosecutor's vouching for the credibility of a government witness...