Berg v. Nooth

An attorney’s failure to object to vouching testimony by expert witnesses results in prejudice to the defendant, and entitles the defendant to a new trial.

Father brought an action for post-conviction relief after being convicted of various sexual offenses against his daughters. The post conviction court denied relief to Father, and he appealed. At trial, Father’s attorney elicited vouching testimony from the State’s expert witness, confirming the expert’s belief in the daughters’ credibility. During closing arguments, the State emphasized the expert’s vouching testimony. Father argued that his attorney rendered inadequate assistance by failing to object to the expert witness’s vouching testimony and by failing to object to improper statements made by the State during closing arguments. The Court held that Father’s attorney did not exercise reasonable professional skill when he allowed the State’s expert witness to vouch for the credibility of the daughters. Oregon courts have rejected vouching testimony by emphasizing that witnesses, expert or not, cannot give opinions about the credibility of other witnesses. The Court held that Father’s attorney did not exercise reasonable professional judgment by failing to object to the State’s closing arguments emphasizing the vouching testimony. The State’s closing argument encouraged jurors to “rely on expert belief in the victims’ credibility” rather than their own conclusions. The attorney’s failures bolstered the victims’ credibility, and affected the verdict. Father’s defense was prejudiced, and therefore he is entitled post-conviction relief in the form of a new trial. Reversed and remanded.