WAS HE LYING? IS HE A “MAN”? (and other questions and comments prosecutors should probably avoid)

 The PA Superior Court has decided the case of Commonwealth v. Yockey, 2017 WL 1240064 (April 4, 2017), holding that the trial court committed error by (1) allowing the prosecutor to elicit testimony of one witness concerning the veracity of another witness and (2) allowing the prosecutor, in his closing argument, to suggest that Yockey should not even be referred to as a “man” because of his acts.

Yockey was charged with involuntary deviate sexual intercourse (“IDSI”), unlawful contact with a minor, corruption of minors, and two counts of indecent assault for conduct arising out of his repeated sexual abuse of a minor male victim when the victim was 14 and 15 years old.

After a jury trial, Yockey was found guilty of corruption of minors and two counts of indecent assault and sentenced to serve an aggregate term of 9 1/2  to 19 months in jail, followed by five years of probation.
Yockey filed a timely notice of appeal raising a number of issues, two of which are pertinent to this post: (1) Whether the trial court erred and/or abused its discretion in allowing the prosecutor to ask an improper question concerning whether one witness would know the state of mind of another witness, i.e. whether that witness was lying? and (2) Whether the trial court erred and/or abused its discretion in failing to sustain an objection as to the prosecutor’s comment that reduced Yockey to something other than a man?

Although the Superior Court ultimately determined that the trial court did commit error by allowing the testimony and argument objected to by Yockey’s counsel, the Superior Court also found those errors to be harmless because neither the objectionable evidence nor the objectionable closing comment caused Yockey prejudice.

That said, the Superior Court’s analysis of these two issues may prove fruitful in future cases where the error may not be deemed harmless.


The Superior Court concluded that the trial court erred when it overruled Yockey’s objection and allowed one witness, McIntyre, to answer the prosecutor’s questions which sought to determine if McIntyre though another witness, Brown, was lying during his testimony. This line of questioning was posed to McIntyre after his own testimony contradicted that of Brown, who had testified earlier.

In summarizing the applicable legal standard to be applied, the Superior Court relied upon the Supreme Court of Colorado’s “cogent explanation” of this issue, stating that there are a number of reasons why it is generally impermissible to question one witness about his opinion concerning the veracity of another witness:

1.  Asking a witness to comment on the veracity of another witness offers little or no probative value.

2.  This form of questioning ignores numerous alternative explanations for evidentiary discrepancies and conflicts that do not involve lying, e.g. – differences in opinion, lapses or inaccuracies in memory, differences in perception, a misunderstanding, or any other number of wholly innocent explanations for discrepancies between one witness’s testimony and another’s.
3.  These questions infringe upon the province of the fact-finder and risk distracting the fact-finder from the task at hand. Credibility determinations are to be made by the fact-finder, not by the prosecutor or a testifying witness.

4.  Asking “were they lying” questions is argumentative. These questions set one witness against another and call for the inference that someone is deliberately deceiving the court.


The applicable standard is whether the prosecutorial comments made during a closing argument were based on the evidence or reasonable inferences therefrom. If so, they are not objectionable, nor are comments that merely constitute oratorical flair. In reviewing an allegation of prosecutorial misconduct, the appellate courts will find that comments by a prosecutor constitute reversible error only where their unavoidable effect is to prejudice the jury, forming in their minds a fixed bias and hostility toward the defendant such that they could not weigh the evidence objectively and reach a fair verdict.

In this case, the Superior Court concluded that the prosecution’s statement—that Yockey possibly did not deserve to be called a “man”—did not constitute a comment upon the evidence, was not a fair response to a point made by Yockey in his closing, and was not permissible “oratorical flair.” Accordingly, the Court concluded that the comment simply had no place in the case and was not condoned by the Superior Court.

When Yockey objected to the comment, the trial court overruled Yockey’s objection and refused to give a requested curative instruction. However, the trial court did subsequently tell the jury “not to allow sympathy, prejudice, or any emotion to influence your decision” and that is was their “duty to base [their] decision strictly on the evidence.” In fact, the Superior Court determined that the trial court’s subsequent instruction given at the conclusion of the prosecutor’s closing argument was more favorable to Yockey than it would have been had Yockey immediately objected and requested a more pointed instruction because that would have required the trial court to “repeat the objectionable comment or remind the jury of the comment.”

CASE LINK: http://www.pacourts.us/assets/opinions/Superior/out/J-A01017-17o%20-%2010305167016780684.pdf?cb=1

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