No Vouching, Full Cross-Examination: Third Department Orders New Trial and Severance Where Investigator Credibility Opinions and Cross-Examination Limits Skewed the Jury’s Core Credibility Determinations

Introduction

In People v. Swartz, the Appellate Division, Third Department reversed two convictions for predatory sexual assault against a child and remitted for a new trial. The court held that the jury’s exclusive role in assessing credibility was impermissibly compromised by (1) law enforcement and forensic-interview testimony expressly vouching for a child complainant’s truthfulness and reliability, and (2) the trial court’s blanket prohibition on impeaching that complainant with a prior inconsistent statement made in an unrelated Family Court proceeding denying molestation. Exercising interest-of-justice review despite limited preservation, the court found these errors cumulatively non-harmless in a case hinging on credibility.

Looking ahead to retrial, the court directed severance of counts involving distinct victims and incidents separated by years. The panel also addressed several recurring pretrial and trial-management issues—affirming that pre–January 1, 2020 readiness remains effective after the 2020 discovery reforms, upholding the denial of a CPL 245.35(4) fact-finding hearing on the “advocate-witness” theory, and sustaining in camera nondisclosures.

Summary of the Opinion

Legal sufficiency and weight: The convictions were supported by legally sufficient evidence and not against the weight; the victims’ testimony, while featuring some discrepancies, was not incredible as a matter of law.
Reversible trial error—vouching: The jury’s role was usurped when a police sergeant and a child forensic interviewer testified that they believed the child complainant (victim 2) was truthful or reliable. No curative instruction was given.
Reversible trial error—impeachment preclusion: The court erred by barring cross-examination of victim 2 with a prior inconsistent statement from a Family Court proceeding (a denial of molestation), which went to the ultimate issue. The court could have limited collateral prejudice with tailored instructions rather than a complete ban.
Cumulative non-harmless error: Given the case turned on credibility, the combined effect of vouching and impeachment-preclusion required reversal in the interest of justice.
Readiness and discovery: A pre–January 1, 2020 statement of readiness remained effective after the discovery reforms; the People were not required to file a certificate of compliance to maintain readiness status for CPL 30.30 purposes, and their later certificate was not illusory.
CPL 245.35(4) hearing: No abuse of discretion in denying a fact-finding hearing regarding the ADA’s role in the forensic interview; disqualification was not warranted under the advocate-witness rule.
In camera review: Withholdings and redactions were upheld.
Remedial directive: On remand, the counts must be severed for any retrial.

Analysis

Precedents Cited and Their Influence

1) The vouching prohibition and jury’s exclusive credibility function

PEOPLE v. CIACCIO, 47 N.Y.2d 431 (1979): Establishes that it is the jury’s exclusive province to decide credibility and condemns testimony that, in effect, opines on guilt by asserting one witness is truthful.
People v. Pabon, 28 N.Y.3d 147 (2016): Reaffirms the jury’s role and informs harmless-error analysis when credibility is central.
PEOPLE v. PAPERNO, 54 N.Y.2d 294 (1981): Addresses the “unsworn witness” rule and the problem of vouching and injecting personal credibility into the trial.
PEOPLE v. CABA, 66 A.D.3d 1121 (3d Dept 2009): Third Department precedent reversing in the interest of justice for credibility-bolstering testimony.
People v. Jian Long Shi, 43 Misc.3d 91 (App Term 2014): Additional support for reversal where vouching invaded the jury’s role.

These authorities collectively shaped the court’s conclusion that statements such as “I felt [the complainant] was telling the truth” and “the goal of reaching the truth was done in this case,” or assertions that the complainant was “reliable,” are forbidden credibility endorsements that directly intrude on the jury’s fact-finding function. Without a curative instruction, the risk of undue influence was acute.

2) Right to impeach with prior inconsistent statements; confrontation scope

PEOPLE v. HANLEY, 5 N.Y.3d 108 (2005): Trial courts should, where possible, employ tailored limitations and instructions rather than impose wholesale preclusion, especially where the impeaching material bears on the ultimate issue.
PEOPLE v. WILLIAMS, 47 A.D.2d 963 (2d Dept 1975): Supports a defendant’s right to confront a witness with a prior inconsistent statement central to the case.
PEOPLE v. MANNIX, 302 A.D.2d 297 (1st Dept 2003): Contrasted in Swartz; collateral impeachment may be excluded, but not where it targets the core issue before the jury.
People v. Robinson, 216 A.D.3d 1252 (3d Dept 2023): Context for confrontation limits and harmless error.

Against this backdrop, the court held it was error to block cross-examination about a prior denial of molestation by victim 2 in a Family Court matter. Because that denial went to the heart of the allegations at trial, the court could and should have allowed controlled impeachment with carefully crafted limits to minimize collateral prejudice.

3) Interest-of-justice review and harmless error

CPL 470.15(6)(a): Authorizes reversal “as a matter of discretion in the interest of justice” even absent full preservation of the specific legal ground at trial.
People v. Pabon, 28 N.Y.3d 147 (2016); PEOPLE v. CABA, 66 A.D.3d 1121 (3d Dept 2009): Provide the analytic framework for concluding that cumulative credibility-related errors are not harmless where the case turns on witness believability.
PEOPLE v. KOZLOWSKI, 11 N.Y.3d 223 (2008): A contrasting example where errors were deemed harmless; cited to underscore why Swartz falls on the other side of the line.

Because the prosecution’s case rested principally on the complainants’ testimony, the court deemed the combination of vouching and improperly curtailed impeachment to have directly affected the jury’s core function and likely influenced the verdict.

4) Readiness and discovery reforms—preservation of pre-2020 readiness

CPL 30.30(5) and 245.50(3): Tie trial readiness to discovery compliance (certificate of compliance or “COC”) after January 1, 2020.
People v. King, 42 N.Y.3d 424 (2024): The Court of Appeals clarified that a valid pre–January 1, 2020 statement of readiness remains operative after the discovery reforms; the People do not revert to unreadiness on January 1, 2020 solely because they had not filed a COC.
People v. Robbins, 206 A.D.3d 1069 (3d Dept 2022): A Third Department application of the same principle.
People v. Bay, 41 N.Y.3d 200 (2023): Defines when a COC is “illusory” and sets the standard for good-faith, reasonable under the circumstances discovery compliance.

Applying King, the court held that the People’s July 22, 2019 readiness announcement was valid and did not automatically lapse with the January 1, 2020 discovery changes. The later COC was not illusory under Bay.

5) Advocate-witness and “unsworn witness” rules; CPL 245.35(4) hearings

PEOPLE v. PAPERNO, 54 N.Y.2d 294 (1981): Discusses both the “unsworn witness” rule (prosecutor injecting personal credibility) and the advocate-witness concerns.
PEOPLE v. SOMERVILLE, 249 A.D.2d 687 (3d Dept 1998); PEOPLE v. WILHELM, 34 A.D.3d 40 (3d Dept 2006): Disqualification under the advocate-witness rule is warranted only where the prosecutor will be called on a disputed, material issue (by the People or by the defense, with adverse testimony).

The ADA’s presence at the forensic interview did not require disqualification: she was not expected to testify, had no adverse information to the People, and any information would have been cumulative of the interviewer’s testimony. Denying a CPL 245.35(4) fact-finding hearing was within the court’s discretion.

6) In camera review and disclosure

People v. McCray, 23 N.Y.3d 193 (2014); People v. Dirschberger, 230 A.D.3d 876 (3d Dept 2024); People v. Sharlow, 217 A.D.3d 1120 (3d Dept 2023); People v. Bowman, 139 A.D.3d 1251 (3d Dept 2016): Standards for in camera review and the propriety of withholding/redacting materials.

Upon its own review, the Third Department found no abuse of discretion in the lower court’s nondisclosure determinations.

7) Severance on remand

CPL 200.20(3)(a): Authorizes discretionary severance in the interest of justice even where counts are otherwise joinable.
PEOPLE v. SHAPIRO, 50 N.Y.2d 747 (1980); PEOPLE v. DANIELS, 216 A.D.2d 639 (3d Dept 1995); People v. Mero, 2024 NY Slip Op 06385 (2024): Guide the severance analysis, especially when counts involve different victims, separated time frames, and risk of prejudice in cross-contamination of evidence.

The panel directed severance if the case is retried, reflecting concern that joinder of offenses involving separate victims and time periods, with limited cross-admissibility, risks undue prejudice.

Legal Reasoning

The heart of the decision lies in protecting the jury’s exclusive credibility function. The panel identified two trial-level distortions: improper vouching by state actors and undue restriction on core impeachment. Each error independently threatened the fairness of the proceeding; together, they undermined the jury’s ability to neutrally evaluate testimony in a case that turned on witness accounts.

On vouching, the court applied Ciaccio and related cases to hold that witness endorsements of a complainant’s truthfulness are, in substance, an opinion of guilt and thus inadmissible. The absence of a curative instruction heightened the prejudice. On the cross-examination issue, the court distinguished between collateral impeachments and those that go to the ultimate fact in dispute. Because the Family Court denial was directly inconsistent with the trial allegation, preclusion was error; narrower measures could have contained any collateral issues. The cumulative impact failed harmless-error review under Pabon and related authorities, warranting reversal via CPL 470.15(6)(a).

The court methodically disposed of other issues likely to recur. It reaffirmed King’s rule on the continuity of pre-2020 readiness under CPL 30.30 and CPL article 245 and found the COC not illusory under Bay. It emphasized the high threshold for disqualifying a prosecutor under the advocate-witness rule and approved the denial of a fact-finding hearing. It also endorsed prior in camera nondisclosure determinations. Finally, the court exercised its supervisory authority to require severance on remand, citing the risk of prejudice from trying charges involving different victims and time frames together.

Impact and Practice Implications

Child-abuse investigations and testimony:
- Investigators and forensic interviewers must strictly avoid endorsing a complainant’s credibility. Training and direct-examination protocols should emphasize describing methods and observations without opinions on truthfulness or reliability.
- Prosecutors should preclear testimony to avoid eliciting credibility opinions and be prepared to offer (or accept) prompt curative instructions if a witness strays into vouching.
Cross-examination and prior inconsistent statements:
- Prior inconsistent statements—even from other tribunals like Family Court—are admissible impeachment where they go to the ultimate issue. Trial courts should use tailored instructions and scope limits rather than categorical preclusion.
- Defense counsel should specify the content, timing, and context of the prior statement to facilitate rulings and preserve error.
Severance in multi-victim sex offense prosecutions:
- Swartz signals heightened sensitivity to prejudice from joinder where victims and episodes are distinct. On retrial, and in analogous cases, courts may be more receptive to severance under CPL 200.20(3)(a) absent strong cross-admissibility.
Discovery-readiness landscape:
- Pre–January 1, 2020 readiness remains valid after the discovery reforms per King. Defense strategies premised on automatic unreadiness as of January 1, 2020 will not succeed.
- Certificates of compliance are judged by Bay’s “good faith/reasonableness” standard; claims of “illusory” COCs require concrete showings.
Advocate-witness disqualification:
- Participation in interviews does not, by itself, make the ADA a necessary witness. Disqualification requires a concrete showing that the prosecutor will give material testimony on a disputed issue or will be called adversely by the defense.

Complex Concepts Simplified

Vouching/bolstering: A witness (especially a law enforcement officer or expert) stating that another witness is truthful or reliable. This invades the jury’s role and is generally forbidden.
Interest-of-justice reversal (CPL 470.15(6)(a)): The appellate court may reverse despite imperfect preservation if necessary to ensure fairness, particularly where errors strike at the heart of the trial’s integrity.
Harmless error: Even if a mistake occurred, a conviction may stand if the appellate court is convinced the error did not influence the verdict. Errors undermining core credibility assessments rarely qualify as harmless in credibility-driven cases.
Prior inconsistent statement impeachment: Using a witness’s earlier statement that conflicts with their trial testimony to question their credibility. If it bears on the ultimate issue, it is typically permitted subject to limits.
CPL 30.30 readiness and CPL 245 certificates:
- Readiness: The People must announce readiness for trial within statutory time limits.
- COC: After January 1, 2020, the People’s readiness generally must be accompanied by a certification of discovery compliance; however, valid pre-2020 readiness remains effective under King.
Advocate-witness rule: A prosecutor should not serve as both trial advocate and witness on a disputed, material fact. Disqualification is reserved for concrete, material testimonial necessity.
Unsworn witness rule: A prosecutor may not inject their personal knowledge or credibility into the case, such as by vouching, implying facts not in evidence, or arguing personal beliefs.
In camera review: A judge privately reviews sensitive materials to decide what, if anything, must be disclosed to protect fairness and confidentiality.
Severance (CPL 200.20(3)(a)): Even if charges are properly joined, a court may order separate trials in the interest of justice to avoid prejudice.
Legal sufficiency vs. weight of the evidence:
- Sufficiency: Whether, viewing the evidence most favorably to the People, a rational juror could find every element beyond a reasonable doubt.
- Weight: A neutral reweighing of the evidence with deference to the jury’s credibility determinations.

Conclusion

People v. Swartz reinforces two bedrock trial principles in cases that turn on witness credibility. First, no witness—particularly law enforcement or a forensic interviewer—may opine that a complainant is truthful or reliable; such vouching usurps the jury’s function and is reversible error. Second, where a complainant’s prior statement contradicts the core allegation, the right of confrontation requires allowing impeachment, subject to tailored limits rather than blanket exclusion. The Third Department’s use of interest-of-justice review underscores the gravity of these errors in credibility-centric prosecutions.

The decision also delivers clear guidance on several recurring procedural fronts: pre-2020 readiness remains valid notwithstanding the 2020 discovery reforms (King), COCs are assessed under Bay’s good-faith standard, advocate-witness disqualification requires a concrete and material testimonial need, and in camera nondisclosure rulings will be upheld absent abuse of discretion. Finally, the directive to sever counts involving different victims and periods provides a strong remedial guardrail for retrials and future prosecutions where joinder risks undue prejudice.

Taken together, Swartz is a significant reminder that child sexual abuse trials—often built on testimonial evidence—demand vigilant adherence to evidentiary boundaries and confrontation rights to preserve the integrity of the jury’s core task: deciding whom to believe.