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IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

YOUNG JAE KIM, 

Appellant, 

v. 

STATE OF ALASKA, 

Appellee. 

Court of Appeals No. A-11484 

Trial Court No. 3AN-12-7632 CR 

O P I N I O N 

No. 2542 — February 24, 2017 

Appeal from the District Court, Third Judicial District, 

Anchorage, Alex Swiderski, Judge. 

Appearances: David D. Reineke, under contract with the Public 

Defender Agency, and Quinlan Steiner, Public Defender, 

Anchorage, for the Appellant. Melissa Wohlfeil, Assistant 

District Attorney, Anchorage, and Michael C. Geraghty, 

Attorney General, Juneau, for the Appellee. 

Before: Mannheimer, Chief Judge, and Allard, Judge. 

Judge ALLARD. 

Young Jae Kim was convicted of third-degree theft for stealing a computer 

from the University of Alaska and then making a false report to the police officer who 

was investigating the missing computer.1 Kim told the officer that someone had stolen 

the computer from him while he was in the university library. 

Former AS 11.46.140(a)(1) (2012) and AS 11.56.800(a)(2), respectively. 1 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Kim raises three claims on appeal. He argues first that the judge at his trial 

improperly allowed the investigating officer to offer his opinion concerning the 

credibility of Kim’s version of events and a competing version of events offered by one 

of the State’s witnesses. Kim next claims that the prosecutor engaged in improper 

behavior when, during her cross-examination of Kim, she asked Kim whether he was 

telling the truth and the State’s witness was lying. Lastly, Kim claims that the prosecutor 

improperly offered her personal opinion concerning Kim’s credibility when she 

delivered her closing argument to the jury. 

None of these claims were preserved in the trial court. For the reasons 

explained in this opinion, we conclude that Kim has failed to show plain error. We 

therefore affirm Kim’s convictions. 

Underlying facts 

Kim was a student at the University of Alaska Anchorage. In March 2010, 

he checked out a laptop computer from the university on a long-term student loan. Two 

years later, Kim reported that this laptop had been stolen from him on June 15, 2012 

when he briefly left the laptop unattended in the university library. 

Using a monitoring program, the university was able to locate the laptop 

at the home of George Yates. When Yates was contacted, he told the university police 

that he had seen the computer advertised on Craigslist, and that he had purchased the 

laptop for $60 from a man named Samuel Choe. According to Yates, he purchased the 

computer around the same time that Kim claimed that the laptop was taken from him at 

the library. 

University police officer Roger Frierson then interviewed Samuel Choe. 

Choe admitted selling the laptop to Yates, but he was reluctant to reveal how he acquired 

the laptop. The officer informed Choe that the laptop was stolen, and that he (Choe) 

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could get in trouble for trafficking in stolen goods. Choe declared that he had not known 

that the laptop was stolen, and he then told the officer that he had received the laptop 

from his friend Kim as collateral for a loan that Kim had taken out from Choe. 

According to Choe, Kim failed to repay the loan, so Choe sold the laptop to Yates. 

Frierson interviewed Kim and told Kim what he had already learned 

through his investigation, including what Yates and Choe had said. Kim continued to 

assert that the laptop had been stolen from him at the library. 

The police, and later the district attorney’s office, concluded that Kim’s 

story was false, so the State charged Kim with third-degree theft for pledging the laptop 

to Choe as collateral for the loan,2 and with making a false report to the police for 

declaring that the laptop had been stolen.3 

It was improper to allow Officer Frierson to offer his opinion as to whether 

Choe and Kim were telling the truth, but this improper testimony did not 

rise to the level of plain error given the circumstances of this case 

At Kim’s trial, Officer Frierson testified about his investigation into the 

report of the stolen laptop. During this testimony, Frierson told the jury that when he 

interviewed Kim, he concluded that Kim was lying about the laptop being stolen from 

the library. According to Frierson, the “real theft” occurred when Kim pledged the 

laptop as collateral for the loan. Frierson also testified that, during his earlier interview 

with Choe, he concluded that Choe had not known that the laptop was stolen, and that 

Choe was acting in good faith in trying to help the officer. 

2 See former AS 11.46.140(a)(1) (2012). 

3 See AS 11.56.800(a)(2). 

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Kim’s attorney did not object to anyofthis testimony, or to the prosecutor’s 

questions that elicited this testimony. But on appeal, Kim claims that the officer’s 

testimony was improper. 

We agree with Kim that it was improper for Officer Frierson to testify that 

he thought Choe was telling the truth about the laptop and that Kim was lying. 

This Court has repeatedly condemnedallowingawitness toact as a“human 

polygraph” — i.e., allowing a witness to offer a personal opinion about the credibility 

of another witness’s prior statements or testimony.4 Other courts have done the same.5 

We have expressed particular concern when the testifying witness is a law 

enforcement officer, because “jurors may surmise that the police are privy to more facts 

than have been presented in court, or [jurors] may be improperly swayed by the opinion 

of a witness who is presented as an experienced criminal investigator.”6 

Those concerns apply in this case. Officer Frierson testified that he had 

been a police officer for almost nine years. He further testified that he had been the 

investigating officer in this case, and that the investigation had been “pretty lengthy,” 

taking approximately six weeks. From this, the jurors might surmise that Frierson had 

some reason for believing Choe over Kim that had not been introduced into evidence. 

4 Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998); Flynn v. State, 847 P.2d 

1073, 1075-76 (Alaska App. 1993); Thompson v. State, 769 P.2d 997, 1003 (Alaska App. 

1989); George v. State, 2014 WL 2937874, at *1 (Alaska App. June 25, 2014) (unpublished), 

rev’d on other grounds, 362 P.3d 1026 (Alaska 2015). 

5 See 3 Wharton’s Criminal Evidence § 12:13, p. 358 (15th ed. 1999) (“Most courts 

prohibit lay witnesses from commenting on someone else’s credibility because the factfinder 

must ultimately make that evaluation and lay witnesses are no better than the factfinder at 

reaching those conclusions.”); 1 McCormick on Evidence § 43 n.29, p. 285 (7th ed. 2013) 

(“The prevailing view is that one witness may not be asked whether another witness lied or 

was untruthful.”). 

6 Sakeagak, 952 P.2d at 282. 

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The jurors might also be swayed by the opinion of a witness who was presented as an 

experienced criminal investigator. We therefore conclude that Officer Frierson should 

not have been permitted to testify as to whose story — Kim’s or Choe’s — he thought 

was more credible. 

ButalthoughFrierson’s testimony on this point was improper, we conclude 

that this testimony did not prejudice the fairness of Kim’s trial. The information that 

Frierson based his opinion on — the information gleaned from his investigation — had 

already been introduced into evidence at Kim’s trial, and the jury was therefore already 

acquainted with the evidentiary basis of Frierson’s opinion about the relative credibility 

of Choe and Kim. In addition, both Choe and Kim testified at Kim’s trial, and both were 

extensively questioned regarding their descriptions of what happened to the laptop. 

Thus, the jurors could make their own evaluation of Choe’s and Kim’s credibility. 

Given this record, we conclude that Frierson’s testimony, although 

improper, did not constitute plain error requiring reversal of Kim’s convictions.7 

It was error for the prosecutor to ask Kim if he was contending that Choe’s 

description of events was a lie, but it was not prejudicial 

When Kim took the stand at his trial, he testified, consistent with his earlier 

statements, that the laptop was stolen from him at the library. When the prosecutor 

cross-examined Kim, she asked him a series of questions that highlighted the 

fundamental discrepancy between Kim’s assertion that the laptop was stolen and Choe’s 

testimony that Kim had given him the laptop as collateral for a loan. 

See Adams v. State, 261 P.3d 758, 774 (Alaska 2011). 

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7 
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

Toward the end of this series of questions, the prosecutor asked Kim, “Are 

you saying that Mr. Choe is lying?”, and “Are you lying, or is he lying?” Kim replied 

that he was not lying and that Choe was the one who was lying. 

Kim’s attorney did not object to these questions. But, on appeal, Kim 

argues that it was plain error for the trial court to permit the prosecutor to ask these 

questions, because Kim was then forced to offer an opinion about the credibility of 

another witness (i.e., Choe). 

As discussed in the preceding section of this case, Alaska courts have often 

condemned allowing witnesses to comment on the veracity of another witness’s 

testimony.8 But we have never ruled on the specific issue presented here: the propriety 

of so-called “were they lying?” questions — that is, the propriety of asking one witness 

whether another witness was lying during their in-court testimony when both witnesses 

claim personal knowledge of the underlying factual issue. 

A majority of jurisdictions to reach this question have adopted a bright-line 

rule against “were they lying?” questions, particularly when they are directed against 

defendants or defense witnesses.9 There are a number of reasons to favor this bright-line 

approach. 

First, such questions offer little, if any, probative value because they seek 

information beyond the competency of the witness — i.e., they require the witness to 

8 E.g., Sakeagak v. State, 952 P.2d 278, 282 (Alaska App. 1998). 

9 See, e.g., United States v. Sanchez, 176 F.3d 1214, 1220 (9th Cir. 1999); Liggett v. 

People, 135 P.3d 725, 729-30 (Colo. 2006); State v. Singh, 793 A.2d 226, 236-39 (Conn. 

2002); State v. Maluia, 108 P.3d 974, 978 (Haw. 2005); People v. Riley, 379 N.E.2d 746, 753 

(Ill. App. 1978); State v. Graves, 668 N.W.2d 860, 873 (Iowa 2003); Burgess v. State, 495 

S.E.2d 445, 447 (S.C. 1998). 

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speculate as to another witness’s state of mind.10 As one court has explained, “where the 

witness expresses a belief as to the veracity of another witness, that statement of belief 

is simply irrelevant; it does nothing to make the inference that another witness lied any 

more or less probable.”11 

Second, as some courts have noted: 

the predominate, if not sole, purpose of such questioning is 

simply to make the defendant look bad ... . If the defendant 

says the other witness is lying, then the defendant is put in the 

[unenviable] position of calling someone a liar ... . If the 

defendant says a contradictory witness is not lying, then a fair 

inference is that the defendant is lying.”12 

And even if making the defendant look bad is not the purpose of the question, it 

“appear[s] to be the general effect.”13 

Third, the form of the question “ignores numerous alternative explanations 

for evidentiary discrepancies and conflicts that do not involve lying.”14 For example, 

“differences in opinion, lapses or inaccuracies in memory, differences in perception, a 

misunderstanding, or any other number of wholly innocent explanations” may explain 

the discrepancy between the testimony of the two witnesses.15 A “were they lying?” type 

of question falsely reduces these various explanations to the single option of intentional 

deception. 

10 See Liggett, 135 P.3d at 731. 

11 Id. 

12 Graves, 668 N.W.2d at 872 (emphasis in original); accord Liggett, 135. P.3d at 732. 

13 Liggett, 135 P.3d at 731. 

14 Id. 

15 Id.; see also Singh, 793 A.2d 237; Graves, 668 N.W.2d at 872-73. 

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Fourth, “these questions infringe upon the province of the fact-finder and 

risk distracting the fact-finder from the task at hand” which is to determine whether the 

State has proved its case beyond a reasonable doubt.16 It is the jury, and not the 

prosecutoror thetestifyingwitness, that is tasked with makingcredibility determinations. 

“Were they lying?” questions falsely imply “that the fact-finder must determine one or 

more of the witnesses is lying.”17 This has the effect of distorting the government’s 

burden of proof, because “the fact-finder may assume that an acquittal turns upon finding 

that the [government’s] witness ... lied.”18 

Finally, “were they lying?” questions have been criticized for being 

argumentative. As one court has noted, “anytime [an attorney] asks a defendant to 

comment on the truthfulness or explain the testimony of an adverse witness, the 

defendant is in effect being pitted against the adverse witness. This kind of 

argumentative questioning is improper.”19 

Despite the many problems with “were they lying?” questions, a minority 

of courts have declined to adopt a bright-line rule. These courts express general 

disapproval of these types of questions, but they approach each occurrence on a case-bycase basis.20 The minority approach therefore leaves roomfor trial court discretion when 

16 Liggett 135 P.3d at 732; see also Singh, 793 A.2d at 238. 

17 Liggett 135 P.3d at 732. 

18 Id.; accord Singh, 793 A.2d at 237; Maluia, 108 P.3d at 978. 

19 Burgess, 495 S.E.2d at 447. 

20 See Liggett, 135 P.3d at 730 (providing a partial list of jurisdictions in the minority); 

see also State v. Morales, 10 P.3d 630, 633 (Ariz. App. 2000) (holding that “were they lying” 

questions are not improper if “the only possible explanation for the inconsistent testimony 

is deceit or lying or when the defendant has opened the door by testifying about the veracity 

(continued...) 

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the competing testimony is truly irreconcilable and the only reasonable inference is that 

one witness is lying.21 As these courts have noted, in such circumstances, a “were they 

lying” question does not falsely reduce the various explanations for the discrepancy in 

witness testimony to intentional deception — because intentional deception is the only 

reasonableexplanation.22 Instead, thequestion onlyforces thedefendantto acknowledge 

what the jury must have already realized — that the defendant is implicitly accusing 

another witness of lying. 

Although we agree that “were they lying?” questions should be disfavored 

and rarely (if ever) permitted, we conclude that this case does not require us to decide 

whether to adopt the majority bright-line approach or the minority approach. Instead, 

because there was no objection to the “were they lying?” question in this case, we need 

only determine whether the particular question asked in this case rose to the level of plain 

error. 

Here, the jury heard both Kim’s and Choe’s testimony, and it would have 

been obvious to the jury that there was no other reasonable way to reconcile the stories 

of Kim and Choe — either Kim was lying or Choe was lying. The prosecutor’s question 

therefore simply made apparent what the jury would have already realized — that this 

case turned on their determination of Kim’s and Choe’s credibility. Given these 

20 (...continued) 

of other witnesses on direct examination”); People v. Overlee, 666 N.Y.S.2d 572, 576 (N.Y. 

App. Div. 1997) (holding that such questions are appropriate “where ... the defendant’s 

testimony leaves open only the suggestion that the [prosecution’s] witnesses have lied”). 

21 See Morales, 10 P.3d at 633; Overlee, 666 N.Y.S.2d at 576. 

22 See Morales, 10 P.3d at 633; Overlee, 666 N.Y.S.2d at 576. 

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circumstances, we conclude that the prosecutor’s question did not prejudice Kim’s 

substantial rights, and Kim has not shown plain error.23 

The prosecutor did not offer her personal opinion as to Kim’s credibility 

when she delivered the State’s summation to the jury 

One theme of the prosecutor’s closing argument was that Kim had spun a 

“web of lies.” The prosecutor recounted Officer Frierson’s interview with Kim, and she 

argued that Kim committed the crime of making a false report when he declared the 

laptop had been stolen from him at the library. The prosecutor then asserted that Kim 

was continuing to lie about what happened to the laptop — and that the jurors were now 

“witnesses to [Kim’s] lies” (i.e., they had heard his trial testimony). 

Kim’s attorney did not object to the prosecutor’s comments. But on appeal, 

Kim argues that these comments were “improper assertions of the prosecutor’s personal 

opinion as to Kim’s credibility.” 

A prosecutor is permitted to argue reasonable inferences from the 

evidence.24 And as we explained in the preceding section of this opinion, there was an 

irreconcilable conflict between Choe’s and Kim’s accounts of what happened to the 

laptop. It was therefore reasonable to infer, from the evidence, that Kim was lying about 

what happened. Indeed, if the State was to prove the charge of making a false report, the 

State had to prove that Kim knowingly gave a false account of events to the authorities. 

Here, the prosecutor’s assertion about Kim’s “web of lies” was tied directly 

to her discussion of the evidence presented at Kim’s trial, and her assertion was a 

23 See Adams v. State, 261 P.3d 758, 774 (Alaska 2011). 

24 Lewis v. State, 862 P.2d 181, 189 (Alaska App. 1993). 

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reasonable comment on that evidence. We therefore conclude that the prosecutor 

engaged in proper argument when she characterized Kim’s testimony in this fashion. 

Conclusion 

The judgment of the district court is AFFIRMED. 

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