2020 Georgia Code
Title 24 - Evidence
Chapter 6 - Witnesses
Article 2 - Credibility
§ 24-6-620. Credibility a Jury Question

The credibility of a witness shall be a matter to be determined by the trier of fact, and if the case is being heard by a jury, the court shall give the jury proper instructions as to the credibility of a witness.

(Code 1981, §24-6-620, enacted by Ga. L. 2011, p. 99, § 2/HB 24.)

- For article, "Dancing with the Big Boys: Georgia Adopts (most of) the Federal Rules of Evidence," see 63 Mercer L. Rev. 1 (2011). For annual survey on evidence law, see 70 Mercer L. Rev. 97 (2018).

ANALYSIS

• General Consideration
• Civil Cases
• Criminal Cases
• Children
• Appeals

General Consideration

Editor's notes.

- In light of the similarity of the statutory provisions, decisions under former Civil Code 1895, § 5294, former Penal Code 1895, § 1028, former Civil Code 1910, § 5883, former Penal Code 1910, § 1054, former Code 1933, § 38-1805, and former O.C.G.A. § 24-9-80 are included in the annotations for this Code section.

- See Sindy v. State, 120 Ga. 202, 47 S.E. 554 (1904) (decided under former Penal Code 1895, § 1028); Trammell v. State, 183 Ga. 711, 189 S.E. 529 (1937); A.A.A. Hwy. Express, Inc. v. Hagler, 72 Ga. App. 519, 34 S.E.2d 462 (1945) (decided under former Code 1933, § 38-1805); Davis v. State, 424 Ga. 901, 252 S.E.2d 443 (1979); Johnson v. State, 150 Ga. App. 405, 258 S.E.2d 22 (1979) (decided under former Code 1933, § 38-1805); Parks v. State, 150 Ga. App. 446, 258 S.E.2d 66 (1979); A & N Inv., Inc. v. Cronic, 151 Ga. App. 738, 261 S.E.2d 469 (1979) (decided under former Code 1933, § 38-1805); Armour v. State, 154 Ga. App. 740, 270 S.E.2d 22 (1980); Harris v. State, 155 Ga. App. 530, 271 S.E.2d 668 (1980) (decided under former Code 1933, § 38-1805); Price v. State, 159 Ga. App. 662, 284 S.E.2d 676 (1981); Alonso v. State, 190 Ga. App. 26, 378 S.E.2d 354 (1989) (decided under former Code 1933, § 38-1805); Jenkins v. State, 269 Ga. 282, 498 S.E.2d 502, cert. denied, 525 U.S. 968, 119 S. Ct. 416, 142 L. Ed. 2d 338 (1998);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former O.C.G.A. § 24-9-80);(decided under former O.C.G.A. § 24-9-80);(decided under former O.C.G.A. § 24-9-80).

Determination of a witness's credibility is within the discretion of the trier of fact. Burnette v. State, 165 Ga. App. 768, 302 S.E.2d 621 (1983) (decided under former O.C.G.A. § 24-9-80).

Any question as to credibility of a witness is for the jury to resolve. Murff v. State, 165 Ga. App. 808, 302 S.E.2d 697, rev'd on other grounds, 251 Ga. 478, 306 S.E.2d 267 (1983) (decided under former O.C.G.A. § 24-9-80).

In jury trial, jurors are sole judges of credibility of witnesses. Godfrey v. State, 187 Ga. App. 319, 370 S.E.2d 183 (1988); Ward v. State, 205 Ga. App. 584, 423 S.E.2d 288 (1992) (decided under former O.C.G.A. § 24-9-80).

- Trial court did not abuse the court's discretion in refusing to grant defendant's motion for a mistrial after a witness improperly testified that a victim was "genuine" as defendant failed to renew the motion for a mistrial following a curative instruction; further, the curative instruction was the proper corrective measure as the credibility of the witness was a matter for the jury. Cook v. State, 276 Ga. App. 803, 625 S.E.2d 83 (2005) (decided under former O.C.G.A. § 24-9-80).

Resolution of conflicting theories drawn from evidence is for jury and it is not the court's province to reweigh the evidence and the jury's inferences drawn from the evidence. Robinson v. State, 203 Ga. App. 759, 417 S.E.2d 404, cert. denied, 203 Ga. App. 907, 417 S.E.2d 404 (1992) (decided under former O.C.G.A. § 24-9-80).

Defendant's motion for a directed verdict of acquittal in trial for theft by taking a motor vehicle was properly denied since the jury properly assessed the evidence, although conflicting, and found each fact necessary to make out the state's case. Sherls v. State, 272 Ga. App. 152, 611 S.E.2d 780 (2005) (decided under former O.C.G.A. § 24-9-80).

- When the judge tried the accused without intervention of a jury, the credibility of the witnesses was for the judge's determination. Boynton v. State, 11 Ga. App. 268, 75 S.E. 9 (1912) (decided under former Penal Code 1910, § 1054).

Under former O.C.G.A. § 24-9-80, in a trial, the credibility of the witnesses was a matter which should be resolved by the jurors who have heard all of the relevant evidence, and not by the text of the pretrial order. Ballard v. Meyers, 275 Ga. 819, 572 S.E.2d 572 (2002) (decided under former O.C.G.A. § 24-9-80).

- When defendant's alibi witnesses were unimpeached, the trial court, sitting as trier of fact, was not bound to accept the evidence introduced of alibi as true, since the trier of fact determines the credibility of the witnesses and weight to be given their testimony. Gatling v. State, 203 Ga. App. 407, 416 S.E.2d 877 (1992) (decided under former O.C.G.A. § 24-9-80).

- It was for the jury to determine whether the testimony of a witness was so vague, indefinite, and uncertain as to be worthless, or whether the testimony, though contradictory in some respects, possessed some degree of probative value. Sappington v. Bell, 115 Ga. 856, 42 S.E. 233 (1902) (decided under former Civil Code 1895, § 5294); O'Brien v. Ellarbee, 14 Ga. App. 333, 80 S.E. 864 (1914); Sherman v. Stephens, 30 Ga. App. 509, 118 S.E. 567 (1923) (decided under former Civil Code 1910, § 5883); Reaves v. Columbus Elec. & Power Co., 32 Ga. App. 140, 122 S.E. 824; 32 Ga. App. 807 (1924) (decided under former Civil Code 1910, § 5883);cert. denied,(decided under former Civil Code 1910, § 5883).

In a negligence action seeking compensatory damages for a disabling injury, because the injured plaintiff's use of morphine at the time of trial raised a credibility issue, the trial court did not abuse the court's discretion in overruling plaintiff's relevance objection. Imm v. Chaney, 287 Ga. App. 606, 651 S.E.2d 855 (2007) (decided under former O.C.G.A. § 24-9-80).

Only limitation to power of jury to credit witnesses is when the facts testified to are inherently at variance with the common knowledge and experience of mankind. Haywood v. State, 114 Ga. 111, 39 S.E. 948 (1901) (decided under former Penal Code 1895, § 1028); Alexander v. State, 1 Ga. App. 289, 57 S.E. 996 (1907); Reed v. State, 130 Ga. 52, 60 S.E. 191 (1908) (decided under former Penal Code 1895, § 1028); Watson v. State, 13 Ga. App. 181, 78 S.E. 1014 (1913);(decided under former Penal Code 1895, § 1028);(decided under former Penal Code 1895, § 1054).

- When witness testified as to defendant's reputation in community, any subsequent contradiction simply went to the witness's credibility with the jury, and it was error for the court to strike such witness's testimony in toto. Hudson v. State, 163 Ga. App. 845, 295 S.E.2d 123 (1982) (decided under former O.C.G.A. § 24-9-80).

- When there are conflicts in the testimony of witnesses, it is the duty of the jury to reconcile these conflicts if possible so as to make every witness speak the truth. However, if this cannot be done, it then becomes the duty of the jury to believe those whom the jury thinks most entitled to credit. Cotton v. State, 81 Ga. App. 753, 59 S.E.2d 741 (1950) (decided under former Code 1933, § 38-1805).

It is the function of the jury to determine the credibility of the witnesses, and the jurors must weigh and resolve any conflicts presented by the evidence; the appellate court must view the evidence in the light most favorable to the jury's verdict. King v. State, 157 Ga. App. 733, 278 S.E.2d 491 (1981) (decided under former Code 1933, § 38-1805).

- Rule that the uncontradicted testimony of unimpeached witnesses cannot be arbitrarily disregarded does not mean that the jurors are obliged to believe testimony which the jurors in fact discredit, but means that the jurors are to consider the testimony of every witness who is sworn, and not arbitrarily disregard the testimony of any witness. Fincher v. Harlow, 56 Ga. App. 578, 193 S.E. 452 (1937) (decided under former Code 1933, § 38-1805); Lankford v. Holton, 187 Ga. 94, 200 S.E. 243 (1938); 195 Ga. 317, 24 S.E.2d 292 (1943), later appeal, Stow v. Hargrove, 203 Ga. 735, 48 S.E.2d 454 (1948) (decided under former Code 1933, § 38-1805); Wilson v. Professional Ins. Corp., 151 Ga. App. 712, 261 S.E.2d 450 (1979);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805).

- Jury in arriving at a conclusion upon disputed issues of fact may believe part of the testimony of a witness or witnesses, and reject another part. Brown v. O'Neal, 59 Ga. App. 560, 1 S.E.2d 601 (1939) (decided under former Code 1933, § 38-1805); Lawhon v. Henshaw, 63 Ga. App. 683, 11 S.E.2d 846 (1940); Johnson v. State, 69 Ga. App. 663, 26 S.E.2d 482 (1943) (decided under former Code 1933, § 38-1805); Johnson v. Woodward Lumber Co., 76 Ga. App. 152, 45 S.E.2d 294 (1947); Nashville, C. & St. L. Ry. v. Ham, 78 Ga. App. 403, 50 S.E.2d 831 (1948) (decided under former Code 1933, § 38-1805); Davis v. State, 205 Ga. 248, 53 S.E.2d 454 (1949); Frazier v. State, 152 Ga. App. 743, 264 S.E.2d 35 (1979) (decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805).

- If a witness is impeached or discredited in some legal manner, a jury, or a trial judge in a nonjury case, may disbelieve the witness altogether. Mustang Transp., Inc. v. W.W. Lowe & Sons, 123 Ga. App. 350, 181 S.E.2d 85 (1971) (decided under former Code 1933, § 38-1805).

Sufficient evidence supported the defendant's convictions of false statements under O.C.G.A. § 16-10-20 and conspiracy to commit theft by shoplifting under O.C.G.A. § 16-4-8, as the co-conspirator testified as to the defendant's request for specific items to be stolen, the special agent testified about the defendant's false statements, and the defendant gave a statement admitting to the conduct; the testimony of the co-conspirator and of the special agent established the elements of the offenses, and the jury, under former O.C.G.A. § 24-9-80, had the right to disbelieve the defendant's testimony to the contrary. Acey v. State, 281 Ga. App. 197, 635 S.E.2d 814 (2006) (decided under former O.C.G.A. § 24-9-80).

Single witness may be believed by jury in preference to any number of witnesses whose testimony may contradict the single witness. Pyles v. State, 3 Ga. App. 29, 59 S.E. 193 (1907) (decided under former Penal Code 1895, § 1028); Jolly v. State, 5 Ga. App. 454, 63 S.E. 520 (1909); Gordon v. State, 7 Ga. App. 691, 67 S.E. 893 (1910) (decided under former Penal Code 1895, § 1028); Lambert v. State, 11 Ga. App. 764, 76 S.E. 73 (1912); Cook v. State, 13 Ga. App. 308, 79 S.E. 87 (1913) (decided under former Penal Code 1895, § 1028);(decided under former Penal Code 1910, § 1054).

- When defendant's statements are not consistent with and do not explain other direct and circumstantial evidence, defendant's explanation may be rejected by the trier of fact. Green v. State, 155 Ga. App. 795, 272 S.E.2d 761 (1980) (decided under former Code 1933, § 38-1805).

- Jury is to look to the testimony itself, as well as to the circumstances attending the testimony's introduction, in determining the testimony's probative value. Smith v. State, 124 Ga. 213, 52 S.E. 329 (1905) (decided under former Penal Code 1895, § 1028).

- Trier of facts in determining the worthiness of belief of a witness may take into consideration the witness's appearance, the witness's demeanor, or the witness's manner upon the stand. Mustang Transp., Inc. v. W.W. Lowe & Sons, 123 Ga. App. 350, 181 S.E.2d 85 (1971) (decided under former Code 1933, § 38-1805).

Interest of witness in the result of the suit may always be considered in passing upon the witness's credibility; and, if there are circumstances inconsistent with the truth of the witness's testimony, the jury is not obliged to believe the witness, even though the witness is not contradicted by any other witness. Fincher v. Harlow, 56 Ga. App. 578, 193 S.E. 452 (1937) (decided under former Code 1933, § 38-1805); Lankford v. Holton, 187 Ga. 94, 200 S.E. 243 (1938); 195 Ga. 317, 24 S.E.2d 292 (1943), later appeal, Smith v. Davis, 203 Ga. 175, 45 S.E.2d 609 (1947) (decided under former Code 1933, § 38-1805); Dunagan v. Elder, 154 Ga. App. 728, 270 S.E.2d 18 (1980);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805).

Implications inconsistent with testimony may arise from proven facts; and in still other ways the question of what is the truth may remain as an issue of fact despite uncontradicted evidence in regard thereto. Short & Paulk Supply Co. v. Dykes, 120 Ga. App. 639, 171 S.E.2d 782 (1969) (decided under former Code 1933, § 38-1805).

Allowance of impeachment of witness by prior inconsistent statement which is indirectly material to the issue in the case is not error. Hudson Properties, Inc. v. Citizens & S. Nat'l Bank, 168 Ga. App. 331, 308 S.E.2d 708 (1983) (decided under former O.C.G.A. § 24-9-80).

- Doctor's conversation in the hospital with a patient was not admissible as a prior consistent statement to show that the patient had pointed out a lesion to the doctor as the excluded testimony was not as specific to that issue as the patient claimed; the doctor testified that the patient felt that the doctor had delayed the treatment and that the doctor told the patient that they should concentrate on the patient getting well and that the doctor would discuss it with the patient later in the office. Davis v. Reid, 272 Ga. App. 312, 612 S.E.2d 112 (2005) (decided under former O.C.G.A. § 24-9-80).

Excluded testimony of two witnesses that a patient told the witnesses that the patient had pointed out a bump on the patient's breast to a doctor and that the doctor told the patient not to be concerned about it was not admissible as prior consistent statements as the doctor did not place the patient's veracity at issue; the fact that the doctor's testimony was at odds with the patient's testimony did not open the door to the admission of hearsay evidence and, further, the witnesses were allowed to testify that the patient showed the witnesses the lesion and that after the check-up, the patient was relieved Davis v. Reid, 272 Ga. App. 312, 612 S.E.2d 112 (2005) (decided under former O.C.G.A. § 24-9-80).

- Only in very extreme cases ought the court to interfere with a verdict turning on the credit to be given to the witnesses testifying on the trial. Wright v. State, 34 Ga. 110 (1864) (decided under former law); Whitten v. State, 47 Ga. 297 (1872); Crawford v. State, 50 Ga. 249 (1873) (decided under former law); May v. State, 94 Ga. 76, 20 S.E. 251 (1894);(decided under former law);(decided under former law).

- When, on motion for summary judgment, the credibility of a witness or witnesses upon whose testimony the grant of the summary judgment depends is at issue in the case, neither the trial court nor the Court of Appeals will resolve the matter or is concerned with the credibility but will leave this matter to the jury, rather than grant summary judgment. Raven v. Dodd's Auto Sales & Serv., Inc., 117 Ga. App. 416, 160 S.E.2d 633 (1968) (decided under former Code 1933, § 38-1805).

Former Civil Code 1910, § 5884 (see now O.C.G.A. §§ 24-6-620 and24-6-621) was not an abridgment of the absolute right of the jury to determine the credibility of witnesses. Brown v. State, 10 Ga. App. 50, 72 S.E. 537 (1911) (decided under former Civil Code 1910, § 5883).

State's repeated questions to the state's witness specifically pertaining to defendant's credibility were improper under former O.C.G.A. § 24-9-80. Griffin v. State, 267 Ga. 586, 481 S.E.2d 223 (1997) (decided under former O.C.G.A. § 24-9-80).

- Trial court properly denied defendant's motion for a mistrial pursuant to former O.C.G.A. § 24-9-80 during trial on a charge of child molestation as the trial court took remedial measures to cure testimony which tended to bolster the victim's credibility by giving a general instruction concerning improper bolstering of another witness's credibility. Howell v. State, 278 Ga. App. 634, 629 S.E.2d 398 (2006) (decided under former O.C.G.A. § 24-9-80).

Defendant failed to establish ineffective assistance of counsel with regard to defendant's trial and conviction for child molestation based on trial counsel's failure to object to certain testimony by the investigating officer that commented upon the victim's credibility as, even though trial counsel did not object, the trial court gave a curative instruction that specifically informed the jury to disregard the officer's testimony commenting on the victim's credibility, which was adequate to correct any harm. Williams v. State, 290 Ga. App. 841, 660 S.E.2d 740 (2008) (decided under former O.C.G.A. § 24-9-80).

- It was improper bolstering of an officer's credibility for a special agent to testify that based upon the agent's experience and training, the agent thought that the officer had acted appropriately during a traffic stop of the defendant; special agent had not witnessed the stop, and agent's testimony was not admissible as an expert opinion on an issue beyond the ken of the average layperson, and because credibility of the officer and of defendant was the pivotal issue and there was no other disinterested testimony and no ameliorative instructions, error was not harmless. Bly v. State, 283 Ga. 453, 660 S.E.2d 713 (2008) (decided under former O.C.G.A. § 24-9-80).

Testimony by a defendant's sister, who was also a second victim's aunt, that the sister knew that the second victim was telling the truth when the second victim told the sister that the defendant wanted to have sex with the second victim should have been objected to as the credibility of the second victim was a matter for the jury's determination under former O.C.G.A. § 24-9-80; because the defendant denied touching the second victim and there was no evidence of the crime other than the second victim's testimony, defense counsel's error was prejudicial, and a conviction for child molestation against the second victim had to be reversed. Walker v. State, 296 Ga. App. 531, 675 S.E.2d 270 (2009) (decided under former O.C.G.A. § 24-9-80).

- Testimony of the treating psychologist of a child sexual abuse victim that the results of the psychologist's testing were "consistent" with the victim's statements that the victim had been sexually abused was not improper bolstering, and a caseworker who testified was not expressing an opinion about the victim's truthfulness when the caseworker testified that the caseworker's own investigation was closed with a determination of substantiated sexual abuse since the caseworker was testifying as to why the caseworker's investigation was closed and why the caseworker did not continue to follow the family; the caseworker's statement that the victim seemed very truthful and honest violated former O.C.G.A. § 24-9-80, but since the trial court immediately gave a curative instruction, and it was highly probable that this testimony did not contribute to the verdict, this did not require a reversal. Williams v. State, 266 Ga. App. 578, 597 S.E.2d 621 (2004) (decided under former O.C.G.A. § 24-9-80).

Defendant's argument that defense counsel was ineffective under Ga. Const. 1983, Art. I, Sec. I, Para. XIV for failing to object to the testimony of two of the state's witnesses that bolstered the credibility of the victims in violation of former O.C.G.A. § 24-9-80, failed; one of the allegedly bolstering statements was stricken and the jury was instructed to disregard that statement, one of the statements did not express an opinion about whether the victims were telling the truth because that statement related to the officer's investigation and the implications of a probable cause finding, and the statement by the expert that the expert's findings were consistent with the sexual abuse allegations was a permissible comment on medical or scientific tests. Zepp v. State, 276 Ga. App. 466, 623 S.E.2d 569 (2005), overruled on other grounds, Schofield v. Holsey, 281 Ga. 809, 642 S.E.2d 56 (2007), overruled on other grounds by State v. Lane, 308 Ga. 10, 838 S.E.2d 808 (2020) (decided under former O.C.G.A. § 24-9-80).

With regard to a defendant's conviction for terroristic threats, an officer's testimony that indicated the victim's statements were consistent with the officer's observations of the victim's injuries and the disarray in a hotel room where the alleged incident occurred did not constitute improper bolstering or a comment on the victim's veracity. Mullins v. State, 298 Ga. App. 368, 680 S.E.2d 474 (2009) (decided under former O.C.G.A. § 24-9-80).

- Trial court erred in admitting a child molestation victim's prior consistent statements made to her mother and to an expert on child abuse because the statements did not predate her alleged motive to fabricate her claims against her step-father so that he would be removed from her home; however, the defendant failed to show prejudice from the statements. Damerow v. State, 310 Ga. App. 530, 714 S.E.2d 82 (2011) (decided under former O.C.G.A. § 24-9-80).

Failure to charge statute is not error in the absence of a timely written request. Fraser v. State, 52 Ga. App. 92, 182 S.E. 418 (1935) (decided under former Code 1933, § 38-1805); Benton v. State, 185 Ga. 254, 194 S.E. 166 (1937); Brooks v. State, 63 Ga. App. 575, 11 S.E.2d 688 (1940) (decided under former Code 1933, § 38-1805); Georgia Power Co. v. Burger, 63 Ga. App. 784, 11 S.E.2d 834 (1940); Tiller v. State, 196 Ga. 508, 26 S.E.2d 883 (1943) (decided under former Code 1933, § 38-1805); Grier v. State, 196 Ga. 515, 26 S.E.2d 889 (1943); Hodnett v. State, 197 Ga. 730, 30 S.E.2d 606 (1944) (decided under former Code 1933, § 38-1805); Shewmade v. State, 71 Ga. App. 349, 30 S.E.2d 816 (1944); Guy v. State, 72 Ga. App. 395, 33 S.E.2d 853 (1945) (decided under former Code 1933, § 38-1805); Summerour v. State, 85 Ga. App. 94, 68 S.E.2d 158 (1951); Wheeler v. State, 220 Ga. 535, 140 S.E.2d 258 (1965) (decided under former Code 1933, § 38-1805); Tanner v. State, 228 Ga. 829, 188 S.E.2d 512 (1972); Bentley v. State, 131 Ga. App. 425, 205 S.E.2d 904 (1974) (decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805);(decided under former Code 1933, § 38-1805).

Charge substantially in language of statute, in the absence of any request for a more specific charge on the subject, was sufficient. Central of Ga. Ry. v. McGuire, 10 Ga. App. 483, 73 S.E. 702 (1912) (decided under former Civil Code 1910, § 5883) Chandler v. Alabama Power Co., 104 Ga. App. 521, 122 S.E.2d 317 (1961); 217 Ga. 550, 123 S.E.2d 767 (1962), rev'd on other grounds,(decided under former Code 1933, § 38-1805).

Instructions proper in the following cases: Hall v. Burpee, 176 Ga. 270, 168 S.E. 39 (1933); Coates v. State, 192 Ga. 130, 15 S.E.2d 240 (1941); Crosby v. State, 92 Ga. App. 335, 88 S.E.2d 523 (1955); Ward v. State, 239 Ga. 205, 236 S.E.2d 365 (1977) (decided under former Code 1933, § 38-1805).

Trial court's instruction that "you must not base your verdict on inferences or speculation or anything that is not supported by the evidence" was a correct statement of the law and was not plain error on the basis of a claim that such instruction interfered with the jury's function as sole arbiter of the credibility of witnesses. Caldwell v. State, 247 Ga. App. 191, 542 S.E.2d 564 (2000) (decided under former O.C.G.A. § 24-9-80).

- Trial court erred in charging the jury that one of the factors to be considered when evaluating the reliability of an eyewitness identification is "the level of certainty shown by the witness about her identification." Brodes v. State, 279 Ga. 435, 614 S.E.2d 766 (2005) (decided under former O.C.G.A. § 24-9-80); Brown v. State, 277 Ga. App. 396, 626 S.E.2d 596 (2006);(decided under former O.C.G.A. § 24-9-80).

Cited in Marlow v. State, 337 Ga. App. 1, 785 S.E.2d 583 (2016), overruled on other grounds by Quiller v. State, 338 Ga. App. 206, 789 S.E.2d 391 (2016); Miller v. State, 305 Ga. 276, 824 S.E.2d 342 (2019).

Civil Cases

Credibility when issue is attorney's fees.

- When plaintiff, a former client of defendant attorney, appealed the grant of summary judgment to defendant in defendant's suit over unpaid attorney fees, and there was a dispute that defendant and plaintiff had agreed that defendant was to spend as much time as reasonable to produce a second brief, that there was no cap on the fee, and that $5,000 was reasonable, the matter of the parties' credibility was peculiarly for the jury. Brygider v. Atkinson, 192 Ga. App. 424, 385 S.E.2d 95 (1989) (decided under former O.C.G.A. § 24-9-80).

- When a lessee of condemned property testified as to the lessee's business' diminished value, based on loss of customers and other factors, as a result of relocating due to the condemnation, whether there was adequate supporting data for one's conclusion was a jury question. Fulton County v. Dangerfield, 195 Ga. App. 208, 393 S.E.2d 285, rev'd on other grounds, 260 Ga. 665, 398 S.E.2d 14 (1990) (decided under former O.C.G.A. § 24-9-80).

- Verdict by jury for past rent owed to a landlord by a tenant who defaulted in the tenant's monthly lease payments, and as to the jury's finding that the tenant had failed to exercise an option to purchase in the lease, was supported by sufficient evidence since there was a showing by the landlord of a lease agreement and supporting testimony by the landlord; an alternate, allegedly forged lease submitted by the tenant, together with the tenant's testimony, were all issues that went to the weight and credibility and were properly resolved by the jury. Burnett v. Reeves, 258 Ga. App. 846, 575 S.E.2d 747 (2002) (decided under former O.C.G.A. § 24-9-80).

- In an action to recover for disability, the jurors were not bound to credit an expert medical opinion since the rule prescribing the arbitrary rejection of testimony applies, by definition, to direct and positive testimony, as distinguished from circumstantial, opinion, or actually negative testimony. Wilson v. Professional Ins. Corp., 151 Ga. App. 712, 261 S.E.2d 450 (1979) (decided under former Code 1933, § 38-1805).

In a child molestation case, the state's expert's testimony that the children the expert saw in therapy were kids who had made "some sort of disclosure" of sexual abuse that the police found credible was not improper bolstering of the victim's testimony because the testimony was not a clear comment on the victim's credibility. Wiggins v. State, 338 Ga. App. 273, 787 S.E.2d 357 (2016).

- Judgment in a divorce case was reversed and a new trial was ordered after the trial court, in comments made to the jury following the testimony of a witness, stated the court's high opinion of the witness and bolstered the witness's credibility, influencing an issue that was solely for the jury to determine. Hubbard v. Hubbard, 277 Ga. 729, 594 S.E.2d 653 (2004) (decided under former O.C.G.A. § 24-9-80).

- Verdict against an accountant was precluded by judicial admissions by an investor's cousin that the cousin alone took the investor's money because there were no admissions in pleadings or in response to requests for admissions from the cousin, only the cousin's testimony at trial; pursuant to former O.C.G.A. § 24-9-80, any witness's testimony was subject to a determination of credibility by the jury. McIntee v. Deramus, 313 Ga. App. 653, 722 S.E.2d 377 (2012) (decided under former O.C.G.A. § 24-9-80).

Criminal Cases

Credibility of victim in rape prosecution.

- In a rape trial, the trial court properly sustained an objection to a question asked of the victim's examining physician which called for a comment on the credibility of the victim. Lamb v. State, 196 Ga. App. 665, 396 S.E.2d 497 (1990) (decided under former O.C.G.A. § 24-9-80).

- Trial court properly denied the defendant's motion for a directed verdict of acquittal, and the defendant's rape conviction was upheld on appeal, given the victim's testimony at trial that the defendant's sexual organ penetrated hers after telling the defendant to stop was sufficient in and of itself, and no evidence was presented that directly contradicted this statement; hence, the jury had the right to accept the victim's testimony depicting non-consensual, forcible intercourse, as satisfying the requirements of O.C.G.A. § 16-6-1. Scott v. State, 281 Ga. App. 106, 635 S.E.2d 582 (2006) (decided under former O.C.G.A. § 24-9-80).

Trial court did not abuse the court's discretion in admitting the testimony of the physician, the detective, and the victim's friend regarding the victim's prior consistent statements because part of the defendant's trial strategy was to discredit the victim by attacking the victim's memory of the assault due to smoking marijuana; thus, the prior consistent statements to the physician, the detective, and friend were admissible to logically rebut that the victim's memory was clouded. Wilson v. State, 351 Ga. App. 794, 833 S.E.2d 175 (2019).

- Evidence of defendant's conduct in confronting victim, that defendant stood over the victim just after the victim had been shot and announcing the victim had been warned about what would happen, and that defendant calmly walked away after that was sufficient to find defendant guilty of murder and aggravated assault even though a codefendant actually shot the victim even though defendant claimed that certain witness's testimony was unreliable since witness's credibility was an issue for the jury's determination. Dillingham v. State, 275 Ga. 665, 571 S.E.2d 777 (2002) (decided under former O.C.G.A. § 24-9-80).

Evidence was sufficient to support the defendant's conviction for forgery because whatever purported inconsistencies could have existed in a witness's testimony were for the finder of fact to weigh and pass upon, and the trial court found that although the witness was not the most credible of witnesses, the witness's testimony was an inculpatory statement against the witness's penal interests, and there was no reason not to believe the testimony; the trial court considered the validity of the witness's testimony in light of the impeaching evidence, and it was not within the purview of the court of appeals to upset that judgment. Martin v. State, 305 Ga. App. 764, 700 S.E.2d 871 (2010) (decided under former O.C.G.A. § 24-9-80).

- In a criminal case, no harm and no reversible error occurred when the trial court allowed a witness to testify in a way that, appellant contended, amounted to an improper comment upon the credibility of another witness because the testimony was favorable to the appellant. Scudder v. State, 298 Ga. 438, 782 S.E.2d 638 (2016).

Assuming without deciding that trial counsel performed deficiently by failing to object or move for a mistrial with regard to a prosecutor's questions to a detective regarding the detective's belief of defendant's various versions of events surrounding the murder, the defendant could not show prejudice because the other evidence of defendat's guilt already indicated to the jury that not all of the stories that defendant told to police could be true. Newman v. State, Ga. , 844 S.E.2d 775 (2020).

- Evidence was legally sufficient to support defendant's convictions for misdemeanor theft in violation of O.C.G.A. § 16-8-2 and for practicing dentistry without a license in violation of an earlier version of O.C.G.A. § 43-11-50, after defendant held oneself out as a dentist to numerous individuals, obtained loans for business ventures involving a dentistry practice, obtained services for the dentist practice which the dentist did not pay for, and performed services on patients; the jury resolved the credibility and weight of the evidence issues pursuant to former O.C.G.A. § 24-9-80. McMillan v. State, 266 Ga. App. 729, 598 S.E.2d 17 (2004), overruled in part by Gidwell v. State, 279 Ga. App. 114, 630 S.E.2d 621 (2006) (decided under former O.C.G.A. § 24-9-80).

- On appeal from the defendant's aggravated assault, possession of a firearm during the commission of a crime, and first-degree criminal damage to property convictions, the court held that the testimony provided by two of the victims identifying the defendant as one of the perpetrators was sufficient to uphold the conviction as: (1) the testimony of a single witness was generally sufficient to establish a fact; and (2) under former O.C.G.A. § 24-9-80, the credibility of a witness was a matter to be determined by the jury under proper instructions from the court. Reid v. State, 281 Ga. App. 640, 637 S.E.2d 62 (2006) (decided under former O.C.G.A. § 24-9-80).

Trial court did not abuse the court's discretion by denying the defendant's motion for a new trial because sufficient evidence supported the defendant's convictions for arson and aggravated assault based on the testimony of the witnesses who testified that the witnesses could see the defendant starting the fire through the kitchen windows and witnessed the defendant shoot a shotgun in the direction of a neighbor and four law enforcement officers who were at the scene as well as the defendant's admission that the defendant set the fire. Jackson v. State, 347 Ga. App. 199, 818 S.E.2d 268 (2018).

- Despite the testimony of two witnesses improperly bolstering the testimony of the sex abuse victim, the defendant failed to show ineffective assistance of counsel as review of the record revealed that a reasonable lawyer might have decided not to object as sound trial strategy as one witness was an expert that may have hurt the defense if contradicted and the other was an emotional witness who cried and had no personal observations of anything testified to upon examination. Gilmer v. State, 339 Ga. App. 593, 794 S.E.2d 653 (2016).

Trial counsel did not perform deficiently by failing to object to a statement made during the detective's testimony, which the defendant claimed improperly bolstered the co-defendant's testimony, because the detective did not say that the co-defendant told the detective the ultimate truth; instead, the detective was explaining that, in general, when interviewing suspects, the suspects often make inconsistent statements and it often takes considerable time to get the suspects to provide the complete story; and counsel could reasonably have believed that an objection to that part of the detective's testimony would fail, and counsel thus was not ineffective in not making such an objection. Brown v. State, 302 Ga. 454, 807 S.E.2d 369 (2017).

Trial counsel was not ineffective because, in cross-examining the detective, trial counsel pursued a line of questioning designed to show the jury that the police did not conduct a thorough investigation of the murder and instead simply took the co-defendant's version of events at face value; and defense counsel then returned to that point in closing argument; thus, counsel reasonably could have chosen not to object to the detective's statements regarding the detective's personal belief in the co-defendant's account because that testimony supported the defense theory that the state cut short its investigation based on blind faith in the co-defendant, whose credibility trial counsel had already thoroughly attacked on cross- examination. Brown v. State, 302 Ga. 454, 807 S.E.2d 369 (2017).

Credibility of witnesses at a probation revocation hearing is for the court. Caldwell v. State, 166 Ga. App. 657, 305 S.E.2d 407 (1983) (decided under former O.C.G.A. § 24-9-80).

- Consideration of the uncorroborated testimony of the victim, non-recovery of the weapon used in an assault, and the defendant's claim of self-defense go only to the weight and credibility of the witnesses' testimony, not to the sufficiency of the evidence, and are solely within the domain of the jury. Landers v. State, 236 Ga. App. 368, 511 S.E.2d 889 (1999) (decided under former O.C.G.A. § 24-9-80).

- Witness credibility is to be determined by the jury, as is the question of self-defense when there is conflicting evidence on the issue. Holmes v. State, 273 Ga. 644, 543 S.E.2d 688 (2001) (decided under former O.C.G.A. § 24-9-80).

- Charge to the jury on the question of credibility of witnesses is a correct abstract principle of law applicable even in a criminal case. Blackston v. State, 209 Ga. 160, 71 S.E.2d 221 (1952) (decided under former Code 1933 § 38-1805).

- When the evidence was sufficient to find the defendant guilty of armed robbery beyond a reasonable doubt, the confession of the defendant's brother to the commission of the crime was properly disregarded by the jury in the jury's capacity as fact-finder. Burkes v. State, 177 Ga. App. 90, 338 S.E.2d 522 (1985) (decided under former O.C.G.A. § 24-9-80).

- Police officer's testimony that the officer observed the defendant run a stop sign that was "clearly visible" to oncoming traffic was sufficient to authorize the trial court's finding that the defendant was guilty, beyond a reasonable doubt, of disregarding a stop sign. Evans v. State, 235 Ga. App. 877, 510 S.E.2d 619 (1999) (decided under former O.C.G.A. § 24-9-80).

- Permitting the state to introduce a police officer's testimony bolstering a child molestation victim's credibility was reversible error since the truthfulness or credibility of the victim was not beyond the ken of the jurors. Guest v. State, 201 Ga. App. 506, 411 S.E.2d 364 (1991) (decided under former O.C.G.A. § 24-9-80).

Trial court erred in allowing an officer to testify regarding whether the officer believed or disbelieved what the victim said during an interview as the truthfulness of the victim's testimony was a question for the jury; since there was no physical evidence presented, the victim's testimony was the only evidence against defendant, and any bolstering of that testimony was harmful to defendant. Orr v. State, 262 Ga. App. 125, 584 S.E.2d 720 (2003) (decided under former O.C.G.A. § 24-9-80).

Defendant failed to establish ineffective assistance of counsel under Ga. Const. 1983, Art. I, Sec. I, Para. XIV due to defense counsel's failure to request a mistrial when a police officer testified that the officer believed that the victim in the child molestation case was telling the truth; while the witness was prohibited under former O.C.G.A. § 24-9-80 from bolstering the victim's testimony, it was not clear that the trial court would have granted a mistrial if the defendant requested one as the defense counsel objected to the statement and the trial court issued a curative instruction. Goldstein v. State, 283 Ga. App. 1, 640 S.E.2d 599 (2006), cert. denied, No. S07C0623, 2007 Ga. LEXIS 338 (Ga. 2007) (decided under former O.C.G.A. § 24-9-80).

In rape prosecution, defendant cannot ask victim's mother whether she believed daughter's statements about the offense or could tell her daughter was lying from her body language. Nichols v. State, 221 Ga. App. 600, 473 S.E.2d 491 (1996) (decided under former O.C.G.A. § 24-9-80).

In a prosecution for statutory rape, the trial court properly prohibited the defendant from presenting evidence that the victim's family and friends did not believe her statements about the sexual assault by the defendant since credibility of a witness is a matter solely within the province of the jury. Patterson v. State, 233 Ga. App. 776, 505 S.E.2d 518 (1998) (decided under former O.C.G.A. § 24-9-80).

- Former O.C.G.A. § 24-9-80 was not violated by the testimony of a pediatrician, who gave an opinion that the results of an examination of a child victim were consistent with the victim's claim of child molestation. Harris v. State, 279 Ga. App. 570, 631 S.E.2d 772 (2006) (decided under former O.C.G.A. § 24-9-80).

Trial court did not err in denying the defendant's motion in limine to exclude a nurse's testimony, stating that the victim's normal physical examination was consistent with claims of molestation, as the nurse simply testified that the victim's physical examination results were consistent with the allegations, and as such was a permissible expression of the expert's opinion. Noe v. State, 287 Ga. App. 728, 652 S.E.2d 620 (2007) (decided under former O.C.G.A. § 24-9-80).

- When an owner of stolen property is attempting to establish value for purposes of restitution by the thief, if there is any doubt as to whether the witness has shown a sufficient basis or foundation for the witness's opinion as to value, there are particularly sound reasons of justice why the evidence ought to be admitted, and the evidence's weight and credibility, and indeed the question of whether the witness has given sufficient foundation, should be left to the trier of fact. Maddox v. State, 157 Ga. App. 696, 278 S.E.2d 480 (1981) (decided under former O.C.G.A. § 24-9-80).

- Trial court did not abuse the court's discretion in denying the defendant's motion for mistrial even though the state's question to the defendant's parent was an improper attempt to impeach or destroy the credibility of the parent by showing that the parent was incarcerated in jail because the parent was not crucial to the defense as the parent was not an eyewitness to the crime and could not bolster any self-defense claim since the parent was not present when the crime occurred; the trial court instructed the jurors to disregard the question and struck the question from the consideration of the jury. Cannon v. State, 288 Ga. 225, 702 S.E.2d 845 (2010) (decided under former O.C.G.A. § 24-9-80).

- Trial counsel was not ineffective for failing to object to the lead detective's purported comments on the defendant's credibility that the defendant's explanation as to how the child victim got the injuries to the child's chin and chest were inconsistent as the defendant cited no authority for the proposition that O.C.G.A. § 24-6-620 applied when the defendant did not testify at trial and was therefore not a witness; and trial counsel's failure to raise a novel legal argument did not constitute ineffective assistance of counsel. Further, even if the defendant were a witness, the detective's comments did not directly address the defendant's credibility and were not improper. Sawyer v. State, 308 Ga. 375, 839 S.E.2d 582 (2020).

Children

Testimony from child molestation victim.

- Although defendant testified that he had not molested the victim, the victim, his 15-year-old stepdaughter, testified that defendant had been molesting her since she was three years old, and other evidence indicated that the victim told several witnesses it was her half-brother who impregnated her, such conflicts in the evidence only raised issues of credibility, which were for the jury to decide, and the jury's verdict finding defendant guilty of two counts of molestation of the victim was upheld since sufficient evidence supported the convictions. Dowd v. State, 261 Ga. App. 306, 582 S.E.2d 235 (2003) (decided under former O.C.G.A. § 24-9-80).

- Although after a preliminary examination the court may hold a child competent to testify, the credibility of the witness is for the jury; and in determining whether or not the jury will credit the testimony of such witness, the age of the witness and the witness's understanding or lack of understanding as to the nature of an oath, as developed on the examination before the jury, are matters for the consideration of the jury. Young v. State, 122 Ga. 725, 50 S.E. 996 (1905) (decided under former Penal Code 1895, § 1028); Frasier v. State, 143 Ga. 322, 85 S.E. 124 (1915);(decided under former Penal Code 1910, § 1054).

In a prosecution for child molestation and aggravated rape, the trial court committed reversible error in allowing the victim's grandmother to testify that she had never had "any problems with the victim's telling stories." Lagana v. State, 219 Ga. App. 220, 464 S.E.2d 625 (1995) (decided under former O.C.G.A. § 24-9-80).

In a prosecution for child molestation, the trial court did not err in refusing defendant's requested instruction as follows: "The fact that one or more of the witnesses in this case is a child should not ... bring any more weight to her or their testimony." Patterson v. State, 222 Ga. App. 166, 473 S.E.2d 255 (1996) (decided under former O.C.G.A. § 24-9-80).

Testimony of an expert regarding the expert's conclusion that child victims' allegations of sexual abuse were the result of projection and payback was properly excluded. Duncan v. State, 232 Ga. App. 157, 500 S.E.2d 603 (1998) (decided under former O.C.G.A. § 24-9-80).

Trial court erred by allowing a state's expert to testify, over the defendant's objection, that the expert did not believe the victim made up the allegations against the defendant, as such was an ultimate issue of fact, and nothing suggested that the determination of the victim's credibility was beyond the ken of the jurors; thus, to the extent that Smith v. State, 257 Ga. App. 88, 570 S.E.2d 400 (2002), allowed an expert to give an opinion on a witness's credibility or to express an opinion on the ultimate issue of defendant's guilt to rehabilitate the credibility of a witness whose veracity was attacked, it was overruled. Patterson v. State, 278 Ga. App. 168, 628 S.E.2d 618 (2006) (decided under former O.C.G.A. § 24-9-80).

Trial court did not abuse the court's discretion in admitting a videotaped forensic interview of a child molestation victim because the victim testified at trial and was subject to cross-examination about the circumstances surrounding the videotaped interview and statements the victim made during the interview; accordingly, it was the jury's responsibility, as the trier of fact, to resolve any inconsistencies in the victim's statements and judge the victim's credibility. Lynn v. State, 300 Ga. App. 170, 684 S.E.2d 325 (2009) (decided under former O.C.G.A. § 24-9-80).

- An expert witness may testify generally about the ability of children of a certain age to distinguish truth from reality. The witness may also express an opinion as to whether medical or other objective evidence in the case is consistent with the victim's story. However, an expert witness may not put the expert's stamp of believability on the victim's story. State v. Oliver, 188 Ga. App. 47, 372 S.E.2d 256 (1988); Roberson v. State, 214 Ga. App. 288, 447 S.E.2d 640 (1994); Buice v. State, 239 Ga. App. 52, 520 S.E.2d 258 (1999), aff'd, 272 Ga. 323, 528 S.E.2d 788 (2000); Alford v. State, 243 Ga. App. 212, 534 S.E.2d 81 (2000) (decided under former O.C.G.A. § 24-9-80).

- Witnesses testified pursuant to former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820) that the defendant's stepchild, then 12, told the witnesses about being repeatedly raped and molested by the defendant. That the stepchild recanted these statements at trial did not render the hearsay inadmissible under former O.C.G.A. § 24-3-16 (see now O.C.G.A. § 24-8-820), and as the stepchild's credibility was for the jury to decide, the evidence was sufficient to support the defendant's convictions for rape, incest, and child molestation. Harvey v. State, 295 Ga. App. 458, 671 S.E.2d 924 (2009) (decided under former O.C.G.A. § 24-9-80).

- Fact that a child's testimony may have been inconsistent does not render child incompetent to testify, but goes to the child's credibility as a witness. Hayes v. State, 152 Ga. App. 858, 264 S.E.2d 307 (1980) (decided under former Code 1933, § 38-1805).

There was no abuse of discretion in the trial court's decision to allow a twenty-minute conference between the prosecutor and the defendant's eight-year-old son, especially given the tender age of the victim, the nature of the charges, and the child's admitted fear of the defendant. To the extent that the witness altered the witness's testimony after the recess, the credibility of the witness's testimony was for the jury to determine. Carter v. State, 195 Ga. App. 489, 393 S.E.2d 746 (1990) (decided under former O.C.G.A. § 24-9-80).

- Because it was necessary for trial counsel, as part of the trial strategy, to raise the issue of the minor sexual abuse victim's veracity, the trial counsel could not subsequently object to the victim's prior consistent statement, which was entered to verify the victim's testimony. Mealor v. State, 266 Ga. App. 274, 596 S.E.2d 632 (2004) (decided under former O.C.G.A. § 24-9-80).

- In defendant's appeal from a verdict convicting defendant of voluntary manslaughter, the court rejected defendant's claim that a detective's testimony that the detective received no statements inconsistent with the testimony of other trial witnesses did not improperly bolster the opinion of another witness in violation of former O.C.G.A. § 24-9-80. Lester v. State, 262 Ga. App. 707, 586 S.E.2d 408 (2003) (decided under former O.C.G.A. § 24-9-80).

Directed verdict of acquittal unwarranted as: (1) the credibility of the child victim and any the conflicts in the trial testimony were matters solely within the province of the jury to decide; (2) physical findings were not required to corroborate the charges of child molestation, aggravated sexual battery, and aggravated child molestation; and (3) the victim's testimony alone was sufficient to authorize the jury to find the defendant guilty of the crimes charged under the standard of Jackson v. Virginia, 443 U.S. 307 (1979). Hutchinson v. State, 287 Ga. App. 415, 651 S.E.2d 523 (2007) (decided under former O.C.G.A. § 24-9-80).

Appeals

Test on appeal.

- On appeal, the appellate tribunal does not determine the credibility of witnesses or the preponderance of the evidence, but rather utilizes the "any evidence test," which is not available to the trier of facts in deciding disputed factual issues. Crawley v. Marta, 147 Ga. App. 293, 248 S.E.2d 555 (1978) (decided under former Code 1933, § 38-1805).

- Unless it appears from the testimony itself that the fact testified to is a physical impossibility, contrary to known physical laws, or is incredible, impossible, or inherently improbable, the appellate court must accept its veracity as the jury has done. Bell v. State, 52 Ga. App. 249, 183 S.E. 93 (1935); Hayslip v. Liberty Mut. Ins. Co., 72 Ga. App. 509, 34 S.E.2d 319 (1945) (decided under former Code 1933, § 38-1805).

RESEARCH REFERENCES

Am. Jur. 2d.

- 81 Am. Jur. 2d, Witnesses, §§ 283, 285, 479 et seq.

- Cross-examination for purpose of showing bias or hostility on part of witness, 74 A.L.R. 1157.

Advantage which the original trier of facts enjoyed over reviewing court from opportunity of seeing and hearing witnesses, 111 A.L.R. 742.

Admissibility, in support of general credibility of an accomplice-witness who has not been impeached, of evidence from nonaccomplice witness not otherwise relevant or of probative value as against defendant, 138 A.L.R. 1266.

Cross-examination of witness in criminal case as to whether, and with whom, he has discussed facts of case, 35 A.L.R.2d 1045.

Preventing or limiting cross-examination of prosecution's witness as to his motive for testifying, 62 A.L.R.2d 610.

Credibility of witness giving uncontradicted testimony as matter for court or jury, 62 A.L.R.2d 1191.

Propriety, and prejudicial effect of, comments by counsel vouching for credibility of witness, 81 A.L.R.2d 1240.

Propriety of specific jury instructions as to credibility of accomplices, 4 A.L.R.3d 351.

Necessity and admissibility of expert testimony as to credibility of witness, 20 A.L.R.3d 684.

Propriety of cross-examining witness as to illicit relations with defendant in criminal case, 25 A.L.R.3d 537.

Cross-examination of witness as to his mental state or condition, to impeach competency or credibility, 44 A.L.R.3d 1203.

Propriety and prejudicial effect of instructions on credibility of alibi witnesses, 72 A.L.R.3d 617.

Propriety of consideration of credibility of witness in determining probable cause at state preliminary hearing, 84 A.L.R.3d 811.

Instructions to jury as to credibility of child's testimony in criminal case, 32 A.L.R.4th 1196.

Propriety and prejudicial effect of comments by counsel vouching for credibility of witness - state cases, 45 A.L.R.4th 602.

Propriety, and prejudicial effect, of comments by counsel vouching for credibility of witness - federal cases, 78 A.L.R. Fed. 23.