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Counsel Cannot Vouch For Credibility Of Witness In Civil Proceedings

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Draper v. Rosario (9th cir. 2016) 836 F.3d 1072

Disabled prisoner’s civil case against correctional officer over alleged physical abuse. The ethics issue surrounds comments made by the attorney representing the prison guard in closing argument in the civil trial, in which the guard’s attorney told the jury that the guard and his witnesses had “everything to lose” if they didn’t tell the truth, and the prisoner and his inmate witnesses had “nothing to lose” by committing perjury.
Held: The prohibition against counsel vouching for the credibility of witnesses in criminal cases is based on the policy against arguing from evidence that is not in the record. The same policy applies to civil cases, like this one. Thus, counsel’s comments were error, but not plain error because extending this doctrine to civil cases was so novel that the guard’s attorney was not on notice of its application to this case.