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People v. Frye7/30/1998
ennifer Warsing to testify, the prosecutor read to the jury the entire text of the immunity agreement between the Amador County District Attorney and Warsing. In relevant part, the agreement indicated Warsing had cooperated with police and prosecutors in their investigation of the Brandt murders, and memorialized Warsing's assertion "that she will continue to be truthful in her statements." It also contained the proviso that " lthough the District Attorney believes Jennifer Warsing was an unwilling participant and thus not an aider and abettor or accessory under the law, reasonable minds may differ when viewing the same factual situation." The agreement concluded with the following language: "Therefore, in consideration of Jennifer Warsing's promise to continue to fully cooperate with the Amador County Sheriff and District Attorney in the investigation of the death of Robert Brandt, Sr., and Lucille Brandt, to testify in court and to tell the truth, the Amador County District Attorney agrees that no charges will be filed against Jennifer Warsing concerning the killing of the Brandts."
Defendant argues that by reading the terms of the immunity agreement to the jury, the prosecutor not only vouched for Jennifer Warsing's veracity but also indicated to the jury that the district attorney's office had confirmed Warsing's credibility before calling her to the stand.
A prosecutor is prohibited from vouching for the credibility of witnesses or otherwise bolstering the veracity of their testimony by referring to evidence outside the record. (People v. Sully (1991) 53 Cal.3d 1195, 1235 (Sully); People v. Anderson (1990) 52 Cal.3d 453, 479.) Nor is a prosecutor permitted to place the prestige of her office behind a witness by offering the impression that she has taken steps to assure a witness's truthfulness at trial. (United States v. Roberts (9th Cir. 1980) 618 F.2d 530, 536-537.) However, so long as a prosecutor's assurances regarding the apparent honesty or reliability of prosecution witnesses are based on the "facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief," her comments cannot be characterized as improper vouching. (People v. Medina (1995) 11 Cal.4th 694, 757 (Medina); see also People v. Williams (1997) 16 Cal.4th 153, 256 (Williams).)
Here, in accordance with the obligation to disclose to the jury any inducements made to a prosecution witness to testify (People v. Morris (1988) 46 Cal.3d 1, 24-34), the prosecutor read the precise terms of the Amador County District Attorney's immunity agreement with Warsing. Although the prosecutor was not necessarily required to present a verbatim recitation of the terms of the agreement (see Fauber, supra, 2 Cal.4th at p. 823), her reading of the entire document did not constitute misconduct. First, neither the phrasing nor the content of Warsing's agreement to testify truthfully suggested a pretrial determination by the district attorney that Warsing would be telling the truth, or otherwise portrayed the district attorney's office as privy to information bearing on Warsing's veracity that was not admitted at trial. The agreement recites only that Warsing promised to tell the truth in exchange for the district attorney's promise to refrain from charging her with any crimes relating to the Brandts' murders. (Cf. Williams, supra, 16 Cal.4th at p. 257; Fauber, supra, 2 Cal.4th at p. 822.) Moreover, although the prosecutor urged the jury to accept Warsing's version of events, she made no reference to the immunity agreement after initially reciting its terms.
Defendant argues nevertheless that in addition to reading the immunity agreement, the prosecutor made certain state
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