prosecutor in the st trial opinion that douching had occurred and it was not to occur again to make certain i file a motion to preclude vouching the district court so ordered the order was ignored i'd like to turn now to the directly germination the redirect examination of the victim alleged victim tim rosenberg in which the usa asked some two separate questions one the st a was were you lying to any of them into the officer that he had spoken to and secondly he asked a series of questions about when you met with me  transcript but i'm not i don't have in front of me when you re read to me the transcript what you just read was a statement you are not lying to us is that what was there was that a stint as a question i'm not sure i'm not sure where it went on the same page with that y met with the agent two agents and the two prosecutors tried trial is never ok my question to you is was that a question or was not a statement it was clearly a statement because he knew the answer here the witness was not basically inappropriate to ask him if he was being truthful because it really wasn't the answer that he was looking for he wanted to impress upon the jury is that really had a meeting when the agents and the prosecutor had a meeting that this witness was telling them the truth which was belching for what the witness was going to say at trial why i mean i understand you know it it's obviously felching when the government lawyer says in arguments you know i believe the government witnesses but why is it why is it vouching to ask the witness to affirm that he is telling the truth so i mean that's implicitly what every witness is doing this and that i  that's added by asking them that question yet you're actually in u s versus searches limit the agent was allowed to give his opinion on the credibility of another egypt that was here that was not harmless because went directly to the credibility of the wall street witness which was considered about a cheap i act as you indicated you understand what happens in closing that also happened in this case because then you get to closing in the prosecutor in closing that these words why do you think he is credible the obvious answer is jim himself i would submit to you that he is a very credible witness there could not be more obvious than she followed up from  you can't just magically say just because the government uses those words in place that it's not that cheap and in fact that the courts have said it was that cheap there kitty though as a as i just indicated is whether the words express a belief in the credibility of the government witness that's exactly what happened here when he said i would submit to you that he is a very credible witness there's no other way to interpret it other than that he submitted that that the government believes her and this court said previously the entire case was about whether tim was telling the truth after the court had discussed with mr preston multiple instances of her inconsistency and she was a very inconsistent witness and after they have been pointed out during cross examination the prosecutor event in redirect attempted to mitigate the damage but asking her are you making anything up or are you telling the truth he knows she's not going to say i'm lying this was a rhetorical question designed to show the prosecutor would push this word witness up there and he believes she's credible again that is vouching the question that he asked your is none of the problems with her inconsistent testimony doesn't discuss that he's telling the jury to ignore those inconsistencies because the government believes she isn't lying the question was designed to rehabilitate her by putting the prestigious of the government behind the witness interest and if i understand your argument here and i understand that the government in saying to the witnesses are you telling me the truth  is trying to emphasize that the witness wants to say that the ones telling the truth you have case law that says a question to one of your own witnesses so the government asking one of its own witnesses are you telling me the truth cases where the government lawyer or the prosecutor questioning witness says to the witness are you telling me the truth knowing that the witness is going to say yes the witness doesn't answer yes you have a case that tells us that that's vouch implies that the prosecutor and the government is supporting this witness and vouching for the credibility of the witness but the actually your question there isn't a case strictly on point but that the clear implication of the question  similarly in u s versus malaysia the u s prosecutor may not express an opinion or belief in the credibility of a witness and that's what that question does that's the problem ok got it i'd like to move on if i could to that enter towing in that ok well what we are worth it we're at the end of your time i occupied you for a bit more time than perhaps you want to do on the vouching question why don't that the government allowed under a preston and this rosenberg to testify that under a preteen years earlier after initially denying he ever said it had called him a child molester and they also point out that mr preston when she testified said she had never ever thought the ready thing any problem with the relationship between chris and jenna the trial she said well yeah there was a time when i called him a child molester this is irrelevant character evidence and it was the worst crime goes to the ultimate issue by could reasonably be suggesting that she believed he was engaging in sexual activity with jim i mean she just to repeat riff you said you never said that she changed her story said all right yes i did say so you're correct the last thing i just wanted to mention was that about the court limited my closing which i've done just for obviously a long time forty four years jordan jury trials forty two murder trials have never been limited in closing and i gave example muted closing in a case the required a fact oriented happened was the when the prosecutor gave his closing i have ject it is that cheating and the judge told him don't doubt anymore i got up and began demonstrating to the jury the problems with him rosenberg's testimony but the prosecutor got up approached the bench and said he can't do that he's vouching and i said well you know your honor i can vouch i'm not the government's in the judge said well just really you're doing to saying something that he's not present that's what happened ok no no no i don't argue and i did get ok thank you very much let's hear from the government cooper said and i quote and you know this is my opinion i'll tell you right now strictly that the victim was not somebody not someone testifying who had been molested by chris preston it's improper for a defense counsel to state his opinion the supreme court has said that so the court basically said you know basically stay to the credibility don't be giving your opinion that he didn't say it quite that explicitly but that was the only limitation and it did not stop mr cooper from attacking the credibility of the witnesses if you read the his closing argument he definitely with able to attack the credibility of the witnesses when the function of defense counsel is identified three areas of the st one is questions the witnesses questions the witnesses about whether they themselves a wine simply doesn't meet the definition of vouching it's a question the defense the witness provides the answer  opinion the government did not rely on the joint case in conceded error and the court assume without deciding that it was an error so about poorest case really doesn't help the depend entire given any and the  circuit is i submit it's perfectly permissible argument let me ask you let me ask you the following week i'm a coming out of your closing i think it that you would agree with me that if you were to say to the jury the government a my response is that i think in the in this court case in the al comparative steel case where when those kind of statements are made you have to look at them in context and in context that comment is pretty did immediately by the prosecutor telling the jury that it's up to them to determine the credibility it's all a jury function it's your job that's what he tells them can i interrupt for just a minute let's to certain i'm i'm changing and i'm changing a little bit but let's say the prosecutor says it's your job to determine credibility but let me tell you what i think i think is credible now the fact that you just said that the jury and then you go on in the transcript where he said again right after he says whitey why do we think he's credible there's a whole series of why you know basically based on the evidence in the record why the jury should find the the witness credible the when the surrounding context suggests that this despite the personal language the prosecutor is drawing an inference is from evidence in the record rather than offering an opinion and that's exactly what's going on here when you read it in context with the preface that it's the jury's function and then subsequent right after this is the evidence that supports the pact why you should find the the witness credible so in that case the court  bad the context i think is important here basically the victim testified that the defendant wife discovered that the defendant had view movie about pornography with the nine year old victim nine or ten year old victim they had an argument in a parking lot during that argument according to the victim the wife call basically in the context of what's going on here that's not offered to prove his character it's offered to place in context the victim's question about does she know demonstrates the successfulness of the defendant's grooming of the victim and making sure that they had this secret between them of what actually was going on and it also  indicated or explained why the victim subsequent specifically remembered that incident so it was in our free to prove character and the court actually decided the court ruled the trial court ruled it wasn't for a for b evidence it was just part of the evidence relevant to to the case actually so and the court it was not an abuse of discretion for the court to allow that in and in any event it was in the game considered in context it was harmless because the evidence was strong the comment was the testimony was the comment was made in anger the wife's testimony also was that she didn't see anything unusual might have known between the defendant in the victim so i mean i'm not sure it in context considering it in that context with the way to the evidence that it it i think it was harmless unless the court has any other questions preston providing tobacco alcohol or not to be to barry rosenberg that none of that was ever provided to tim and it was evidence allegedly according to the state's actually or possibly a grooming there is no evidence from barry rosenberg anything sexual ever took place ever so it was really on a separate track from tim it was highly prejudicial and even even if marginally relevant there was no for  finally your honor in my closing i did not say it is my opinion this dismantle i started attacking his credibility which this case was all about i was interrupted almost immediately after i started pointing out the credibility issues in what happened then was the judge limited the rest of my closing i see that my time is up thank you very much i appreciate being here today to think think both sides for your