It is impermissible for a prosecutor to ask a witness during cross examination regarding the veracity of the testimony given by other witnesses in the case. Should the prosecutor ask such questions it could constitute reversible error.

The test used for determining whether a prosecutor’s statements are improper and constitute error is whether the remarks “`called to the jurors’ attention matters which they would not be justified in considering in reaching a verdict.’” Improper statements will require reversal if they are determined to be harmful. State v. Emmett,839 P.2d 781, 785 (Utah 1992) (quoting State v. Johnson,663 P.2d 48, 51 (Utah 1983) (quoting State v. Creviston,646 P.2d 750, 754 (Utah 1982))).

There are several Utah cases which illustrate this type of impermissible questioning. In United States v. Emmett, the prosecutor asked the defendant if he thought his son was lying during previous testimony regarding allegations of sexual abuse. The Court stated, “it is improper to ask a criminal defendant to comment on the veracity of another witness. The question is improper because it is argumentative and seeks information beyond the witness’s competence. The prejudicial effect of such a question lies in the fact that it suggests to the jury that a witness is committing perjury even though there are other explanations for the inconsistency. In addition, it puts the defendant in the untenable position of commenting on the character and motivations of another witness who may appear sympathetic to the jury. This question, therefore, was… improper.” 839 P.2d 781 (Utah 1992).

Similarly, in State v. Palmer the prosecutor questioned the defendant whether E.N.’s mother was “mistaken or lying” regarding a conversation she testified about. Defendant argued that questions regarding the veracity of the other witnesses amount to prosecutorial misconduct and the court concluded the questions amounted to “obvious error.” 860 P.2d 339, 343-344 (Utah App. 1993)

Although 801(d)(1)(B) “permits the introduction of a declarant’s consistent out-of-court statements to rebut a charge of recent fabrication or improper influence or motive…” Id. the purpose of the rule is to rebut charges of a recent fabrication or improper influence or motive, but not to bolster the believability of a statement already uttered at trial. See Tome, 513 U.S. at 157-58. The danger in allowing the admissibility of post-motive consistent statement is that they “could easily lead to abuses—a witness could bolster his or her testimony by repeating the same version of facts to any number of persons who could then testify to those out-of-court statements. SeeTome, 513 U.S. at 157-58 (stating rule addresses rebuttal of an alleged fabrication, “not bolstering the veracity of the story told”). State v. Bujan, 2006 UT App 322, 142 P.3d 581.

Ultimately, prosecutors have a duty to avoid all improper tactics. As a servant of the law prosecutors should prosecute vigorously the cases which come before them but not at all costs. The goal is not simply to win a case but to ensure justice is done.