Aponte-Lazu Inconsistent Statement
Lazu gave the first of several inconsistent statements to law
Among those statements was the assertion that Lopez-Morales had
had nothing to do with the crime, which the government claimed
at trial was made in an attempt to
gain the release of Lopez-Morales
so that Lopez-Morales could murder
the government's witnesses.
Agent Huffs Testimony Bolstering
He identified omissions and falsities in Aponte-Lazus
Q: Okay. Now, how were those omissions discovered?
A: Again through interview and through seeing the discrepancies,
inconsistencies and just things that
didn't make sense in the statement.
It became pretty obvious in most cases.
Q: And did you use or need a polygraph in order to do that?
A: No, a polygraph is a last
resort technique. There was no need for a
polygraph in the particular situation. We were pinning him down
without a polygraph. We could
tell when he was lying.
Bolstering Witnesss Credibility Rule
Prosecutors may not place the prestige of the United States
behind a witness by making personal assurances about the
credibility of a witness or by indicating that facts not before
the jury support the witness's testimony.
Other witnesss cannot bolster a witnesss credibility Rule
It is also undisputed that the prosecution cannot accomplish
such improper bolstering of a witness through the testimony of
other government witnesses.
What Government Witnesses can Testify to
Government witnesses may of course testify to facts within their
personal knowledge that support or corroborate another witness's
The prosecution's principal task is often to convince the jury
that the witness's account is credible.
The prosecution simply must do so
and reliable evidence and
through improper vouching that could invite
the jury to find guilt on the basis of something other than the
evidence presented at trial.
Agent Huffs testimony was improper Bolstering, but..
The testimony of Agent Huff was improper.
What can Huff testify to?
[He] could properly testify as to the actions he took to
corroborate Aponte-Lazu's testimony,
What he cannot testify to?
He could not properly opine
on whether particular statements by Aponte-Lazu were "lies," nor
could he represent that the statements not singled out as lies
had been "tested" and verified through interrogation techniques.
Purpose of training and experience testimony (Bostering)
The clear purpose and effect of his testimony was to put the
prestige of his professional knowledge as a federal agent behind
the testimony of Aponte-Lazu.
That is the very definition of improper bolstering, and it is
In Mazza When Bolstering is Dangerous
In Mazza, agents testimony came at the opening of the trial.
The agent testified to items that would never come into evidence
and the defendants testimony was bolstered by the law
enforcement before the jury could evaluate it independently.
In This Case
Thus we are not faced here with the Mazza danger.
The government was justified in seeking admission of this
testimony because of the defense's attacks on the informant's
Aponte-Lazu testified before Agent Huff took the stand.
Aponte-Lazu was subject to vigorous cross-examination.
Furthermore, the district court took pains to instruct the jury
that they were to judge Aponte-Lazu's credibility on the basis
of his testimony alone, and not that of Agent Huff.
We hold that the improper bolstering solicited by the
prosecution from Agent Huff was
harmless error NOT warranting reversal.
We nevertheless take this occasion to issue a strong warning
against the use of this procedure by government prosecutors and
advise that they will tread on thin ice indeed if they continue
to practice this technique in the future.