OPINION OF THE COURT BY EDDINS, J.
I.
During closing argument in this sexual assault case, the prosecution told the jury that its decision “comes to one question. Is [complaining witness] believable?” Then, while discussing the courts credibility instruction, the prosecution explained that the witness’ testimony “is consistent with someone whos been traumatized.”
Recently we vacated a conviction in a sexual assault case after the prosecution during closing argument told the jury that its decision “comes down to one question, is [complaining witness] believable?” Then, while discussing the courts credibility instruction explained that the witness’ testimony “is consistent with a child who is traumatized.” State v. Hirata, 152 Hawai‘i 27, 29, 520 P.3d 225, 227 (2022). This court held that the “traumatized” statement was prosecutorial misconduct that eroded the defendants constitutional right to a fair trial. Id. at 33, 520 P.3d at 231.
In the present case, the Intermediate Court of Appeals validated the prosecutors remarks. We do not.
The prosecuting attorney crossed the line in Hirata. Here too. The remarks constituted prosecutorial misconduct.
We hold that the prosecuting attorney expressed a personal belief about the witness’ credibility and added new evidence during closing argument, thereby undermining the defendants right to a fair trial.
II.
The State alleges that Zeth Browder sexually assaulted the complaining witness (CW) (an identifier commonly used in Hawai‘is trial courts), an elderly woman, while she was camping in her tent in a county park.
The State charged Browder by indictment. It alleged he committed first degree sexual assault, Hawai‘i Revised Statutes (HRS) § 707-730(1)(a) (2014), third degree sexual assault, HRS § 707-732(1)(f) (2014), first degree burglary, HRS § 708-810(1)(c) (2014), kidnapping, HRS § 707-720(1)(e) (2014), and evidence tampering, HRS § 710-1076(1)(a) (2014).
Third Circuit Court Judge Robert Kim presided over Browders trial. The trial occurred two years after Chanse Hiratas continuous sexual assault of a minor trial, and one year before this courts Hirata opinion.
The same deputy prosecuting attorney tried both cases.
The jury found Browder guilty of all charges.
Browder appealed. He raised multiple points of error.
The ICA vacated Browders conviction and ordered a new trial based on other comments the prosecutor made during closing argument. The State didnt appeal the ICAs decision on those comments. Nor did it appeal the ICAs conclusion that those comments may have affected the trials outcome and therefore Browder should be retried.
The ICA rendered a split decision on the prosecutors “consistent with someone whos been traumatized” comment. The majority held that the statement was not misconduct. Judge Leonard disagreed, saying the remark mirrored the one this court found improper in Hirata. Browder appealed on this issue. We accepted cert to examine the ICA majoritys view that the prosecutors “traumatized” comment was permissible.
Thus, the only issue before us is whether the prosecutors “consistent with someone whos been traumatized” comment was prosecutorial misconduct. So we limit our recitation of the facts.
Browders case went to trial in late 2021. The State called several witnesses who interacted with the woman after the alleged crime: the first person she reported the assault to, two responding police officers, two detectives, and a nurse who performed a sexual assault examination. Each witness described the woman as distressed, using words like “scared,” “crying,” “very emotional,” and “shooken up” to describe her demeanor.
The CW testified. The defenses cross-examination aimed to highlight purported inconsistencies in her prior statements.
Before the closing arguments, the court read the standard instruction about witness credibility. See Hawai‘i Standard Jury Instructions Criminal 3.09.
The prosecutors closing referenced the credibility factors in the jury instruction. She described the CWs testimony as “emotional,” “crying,” and “scared.” Then, like in Hirata, the prosecutor declared that the CWs manner of testifying was “consistent with” a “traumatized” person.
The complaining witness in Browders case is an elderly woman. In Hirata, the complaining witness was a child. That difference is inconsequential.
Browders case and Hirata have four key similarities. First, the prosecution told the jurors that the case turned on credibility. Hirata, 152 Hawai‘i at 29, 520 P.3d at 227. Second, witnesses testified that the child and elderly woman were highly emotional during post-assault interactions. Third, the child and elderly woman testified in highly emotional ways. Id. Fourth, the prosecutors closing arguments described the complaining witness’ testimony as “consistent with” a traumatized person.
Here is what the prosecutor said in both cases:
Hirata, 152 Hawai‘i at 29, 520 This case (emphasis added): P.3d at 227: ․ And it also comes down to one ․ [U]ltimately this case comes question, is [CW] believable? to one question. Is [CW] believable? Now, the Court gave you the jury Now, [the Circuit Court] just read instructions that you all have in you a number of jury instructions, front of you, and on page 8, there and on page 9 youll find a number of are a list of factors that you can credibility factors that you can use consider when you deliberate to to determine the credibility of determine if a witness is credible. witnesses. So you look at their demeanor, their candor, lack of motive, and if what Im not gonna reread everything again they say makes sense. for you, but when you look at some of them like her demeanor, her candor, So when you look at the factors – and her lack of motive and is [sic] what Ill go through them with you, ladies she says makes sense, then the State and gentlemen – the answer is clear submits that, yes, the answer to this to this question. Yes, [CW] is question is that [CW] is believable. believable. And because [CW] is And because [CW] is believable as believable, its – it is the stated on page 11 of your jury testimony that has a convincing force instructions, the testimony of even a upon you that counts, and the single witness if believed is testimony of even a single witness, sufficient to prove a fact. if believed, can be sufficient to prove a fact. So now lets look a little bit closer at the credibility factors and the So lets go through the factors of evidence that you heard over the last [CW]’s credibility. Her appearance, week. demeanor, her manner of testifying. She came here last week. You saw So looking at [CW]’s appearance, her. Shes 11 years old. She was demeanor, manner of testifying you nervous and understandably so. And saw her and you got to meet her over she tried to be brave up there on the the course of two days of stand. She answered all of my questioning. questions. She answered all of the defense attorneys questions. Almost Shes 80 years old. She was nervous, three hours up there. shaking on the witness stand. She was emotional and crying. She was And then at the end of almost those scared. She told you she was scared three hours, she couldnt be brave that morning. She was scared at the anymore, and you saw her when she got hospital. She was scared even a week emotional. She broke when the and a half later, and she was still defense attorney continued to call – scared in court. This is consistent to question her credibility and if with someone whos been traumatized. she was making this up, and her answer to you was this really happened. Its consistent with a child who is traumatized.
The ICAs majority (and the dissent) believe the summations meaningfully differ, making the appellate outcomes differ. We held in Hirata that the “consistent with a child who is traumatized” remark improperly expressed the prosecutors personal belief and improperly introduced new evidence during closing argument. Hirata, 152 Hawai‘i at 33, 520 P.3d at 231. The ICA views Browders case as different. It said, “the prosecutors argument. . . was not based on the prosecutors own evaluation and opinion of CWs reaction to being cross-examined, as in Hirata, but was supported by reference to the evidence or facts supporting the assertion” (cleaned up).
The ICA felt the prosecutor did not express a personal opinion related to the witness’ credibility. Rather, telling the jury that the complainant testified consistent-with-a-traumatized-person was just an evidence-rooted inference. The ICA referenced several witnesses who described the woman as “crying,” “scared,” “sad,” and “very shaky.” In the ICA majoritys view, that evidence of post-assault emotion flips the outcome.
Judge Leonard doesnt see the difference. Like we do here, her concurrence split-screens passages from the closing arguments, placing the closings side-by-side. She reasoned that Hirata “is indistinguishable from this case with respect to the prosecutors statement to the jury that the complaining witnesss ․ appearance, demeanor, and manner of testifying was consistent with someone whos been traumatized.” To Judge Leonard, “[t]he rule of law applied to the prosecutor in Hirata is equally applicable to her in this case.”
It is. We hold that the prosecuting attorneys consistent-with-someone-whos-been-traumatized remark expressed a personal belief about the credibility of the States key witness and undermined Browders right to a fair trial. The remark also resulted in a constitutionally unfair trial because prosecutors “are also forbidden from introducing new information or evidence in closing argument.” Hirata, 152 Hawai‘i at 33, 520 P.3d at 231.
III.
A. State v. Hirata
Hirata held that a near-identical “consistent with someone whos been traumatized” remark was prosecutorial misconduct. 152 Hawai‘i at 33, 520 P.3d at 231. Hirata gave two independent reasons.
First, a prosecuting attorneys personal views about the evidence are out-of-bounds. “[T]his court has often directed prosecutors to not express personal beliefs about the evidence.” Id. See also State v. Salavea, 147 Hawai‘i 564, 582, 465 P.3d 1011, 1029 (2020) (prosecutors must “refrain from expressing their personal views as to a defendants guilt or the credibility of witnesses”). A prosecutors assertions of personal knowledge “are apt to carry much weight against the accused when they should properly carry none.” State v. Clark, 83 Hawai‘i 289, 304, 926 P.2d 194, 209 (1996).
Second, prosecutors “are also forbidden from introducing new information or evidence in closing argument.” Hirata, 152 Hawai‘i at 33, 520 P.3d at 231 (emphasis added); see also State v. Basham, 132 Hawai‘i 97, 113, 319 P.3d 1105, 1121 (2014) (“Closing arguments are not the place to introduce new evidence outside the safeguards of the Hawai‘i Rules of Evidence.”).
Hirata drew on this courts decisions in Salavea and Basham, which in turn relied on the American Bar Association (ABA) Standards for Criminal Justice. Salavea, 147 Hawai‘i at 582 n.23, 465 P.3d at 1029 n.23; Basham, 132 Hawai‘i at 114-15, 319 P.3d at 1122-23. The ABA Standards state that arguing from personal belief and adding new evidence are separate reasons to find misconduct. “The prosecutor should not argue in terms of counsels personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility.” ABA Standard 3-6.8(b) (emphasis added). When prosecutors imply secret knowledge, they imply extra facts not in evidence.
Hirata held that a prosecutors remark is improper if it expresses a personal belief about a witness’ credibility or introduces new evidence, not just when it expresses a personal belief about credibility and introduces new evidence. The prosecuting attorney in Hirata “improperly expressed her personal belief about CWs credibility and injected new evidence.” Hirata, 152 Hawai‘i at 33, 520 P.3d at 231 (emphasis added). Both reasons were independent grounds to find prosecutorial misconduct. Contrary to the dissent and ICA, a prosecutors improper personal belief is not cured because it was supported by evidence. See id. at 35, 520 P.3d at 233 (“[A] statement may improperly imply a personal opinion even if specific facts or evidence are invoked.”) (cleaned up).
Witness observations about an alleged victims emotional state do not justify a prosecutors suggestion to the jury that the victim testified truthfully because she was “traumatized.” They did not in Hirata. And they do not here. The Hirata jury heard from the CW, the person who the CW first disclosed the sexual abuse to (the childs mother), a police officer, a detective, a doctor, and an expert on the dynamics of child sexual abuse. Hirata, 152 Hawai‘i at 29, 520 P.3d at 227. The witnesses described the child in post-assault interactions as “scared” and “crying.” That evidence was available to the jury in Hirata. Still Hirata concluded that the prosecutors comment was misconduct.
B. Browders Case
Hirata held that the “consistent with” a “traumatized” person remark was improper for both reasons – improper personal opinion and new evidence during closing. 152 Hawai‘i at 33, 520 P.3d at 231.
Theres no difference in Browders case. Hirata controls.
In both cases, the jury listened as the DPA claimed that the alleged victim testified “consistent with someone whos been traumatized.” But, as in Hirata, the jury heard no evidence that could legitimately support the prosecutors claim that the CW testified consistent with a traumatized person. Id.
Like Hirata, there was no evidence about post-assault “trauma” or evidence regarding the condition or state of being “traumatized.” Id. There was extensive evidence about the witness’ demeanor, her distraught emotional state. But there was nothing to establish “trauma” as a concept or to diagnose the witness with being traumatized. Nor was there foundation for the idea that the CW remained “traumatized” when she testified two and a half years after the alleged sexual assault. There was also no evidence about how a traumatized person may or may not testify or act while testifying. See id. at 33 n.14, 520 P.3d at 231 n.14.
Hirata had an expert who testified generally about the dynamics of child sexual abuse, but did not opine specifically on how traumatized children testify in court or on that cases individual child. Id. The Hirata jury could apply the experts general testimony to the evidence it heard.
Here, there was less for the jury to consider, because there was no expert. This jury lacked any expert psychological testimony to go on. This jury could only rely on its own preexisting ideas of what “trauma” is and what effects, psychological or otherwise, it has on someone who has been “traumatized.” Thus, the prosecutors comment had less support in this case than it did in Hirata.
“Trauma,” and the state of being “traumatized,” are loaded terms. They mean more than distraught or upset. They mean more than a person showing emotional distress, such as by crying or shaking. They connote a lasting psychological condition.
The State, in its briefing to the ICA in this case, defined trauma as “Psychiatry. A startling experience which has a lasting effect on mental life; a shock.” Trauma, The Random House Dictionary of the English Language, 1507 (The Unabridged Edition 1973). The State also defined trauma as “Psychiatry. A painful emotional experience, or shock, often producing a lasting psychic effect.” Trauma, Websters New World Dictionary, 1423 (Third College Edition, 1988). More modern dictionaries define it as “a disordered psychic or behavioral state resulting from severe mental or emotional stress or physical injury.” Trauma, Merriam Webster Dictionary. https://www.merriam-webster.com/dictionary/trauma[https://perma.cc/DQH6-EG59]. Or, “[s]evere emotional or mental distress caused by an experience.” Trauma, The American Heritage Dictionary of the English Language, 2022. https://www.ahdictionary.com/word/search.html?q=trauma[https://perma.cc/P9S3-PZ3Q].
“Trauma,” and the state of being “traumatized,” have a specialized psychological meaning. The Diagnostic and Statistical Manual of Mental Disorders (DSM-5), describes several kinds of traumatic psychological conditions, which can present with varying symptoms. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 265-290 (5th ed. 2013). For example, post-traumatic stress disorder, which can result in long-term effects after exposure to sexual violence. Id. at 271-80.
“Trauma” or “traumatized” doesnt always mean exactly one thing. Id. In some cases, survivors of sexual violence behave with an unemotional, calm demeanor. See People v. Taylor, 552 N.E.2d 131, 133-34 (N.Y. 1990) (citing Ann Burgess & Lynda Holmstrom, Rape Trauma Syndrome, 131 Am. J. Psychiatry 981, 982 (1974)). Emotionless self-presentation may also be “consistent with someone whos been traumatized.” See Taylor, 552 N.E.2d at 134 (“It is also apparent that there is no single typical profile of a rape victim and that different victims express themselves and come to terms with the experience of rape in different ways.”).
The phrasing of the prosecutors comment contributes to its impropriety. “Consistent with” sounds like expert-speak. In this case, the States medical expert, Nurse Davis, opined that the CWs description of the assault was “consistent with” the results of Davis’ medical examination. “Consistent with” prompts a jury to think of “traumatized” in technical, medical, and diagnostic terms. Not the supposedly common-sense meaning the dissent claims.
“Consistent with” also suggests facts not in evidence. For a witness’ behavior to be “consistent with someone whos been traumatized,” some behaviors must be consistent with trauma. Trauma also must have some relevance. In short, “trauma,” and being “traumatized,” must mean something. The prosecutors comment invites the jury to supply its own meaning outside of properly admitted evidence.
For sure, a prosecutor during closing argument “is permitted to draw reasonable inferences from the evidence and wide latitude is allowed in discussing the evidence.” Clark, 83 Hawai‘i at 304, 926 P.2d at 209. Free-flowing syntax often adds flair to a closing argument. But here, the consistent-with-a-traumatized-person comment was not improvised or extemporaneous. Rather, it was deliberate. As in Hirata, the remarks boosted the CWs credibility.
Examining the persuasive impact of “consistent with someone whos been traumatized” shows why it is out of bounds. It invokes, for a juror familiar with trauma, that trauma may cause lapses in memory. See, e.g., Arthur H. Garrison, Rape Trauma Syndrome: A Review of a Behavioral Science Theory and its Admissibility in Criminal Trials, 23 Am. J. Trial Advoc. 591, 619 (2000) (summarizing academic studies). A knowledgeable juror may discount any gaps or inconsistencies they perceive in the CWs testimony.
A juror without that background may view the testimony differently. See Taylor, 552 N.E.2d at 136 (“[W]e believe that patterns of response among rape victims are not within the ordinary understanding of the lay juror.”). Without an expert to explain the impacts, signs, and symptoms of trauma and to opine on whether the CW exhibits trauma, each juror may interpret the prosecutors remark differently based on their individual experience. See id. (“[C]ultural myths still affect common understanding of rape and rape victims.”).
Because an ordinary juror may hold myths or misconceptions about the trauma-infused testimony of sexual assault survivors, State v. David is inapposite. That case held that requiring expert testimony to introduce evidence about (1) blood alcohol concentrations connection to alcohol consumption and (2) the association between alcohol consumption and aggressive behavior undercut the defendants right to present a defense. State v. David, 149 Hawai‘i 469, 477, 481, 494 P.3d 1202, 1210, 1214 (2021). BAC and the relationship between alcohol and aggression are within the common knowledge of the average adult. Id. Thus, this court concluded that jurors should apply “their general knowledge of how humans operate in the world.” Id. at 478, 494 P.3d at 1211.
David is different. Ordinary adults understand the effects of alcohol. Many – we suspect most - adults dont have experience listening to a rape survivor recount their experience. An adults common knowledge does not include how sexual assault survivors testify in a public courtroom. That experience is more specific than the average adults “general knowledge of how humans operate in the world.” Id.
The dissents fundamental premise is that an adult sexual assault survivors manner of testifying is within the average adults common understanding. We dont share that view.
The dissent also seeks to separate this case from Hirata because the prosecutors traumatized comment was “thoroughly supported by evidence” and because the defense attacked CWs credibility. This is no distinction at all. The prosecutor and defense attorney in Hirata did the same things.
After the “traumatized” comment, the Hirata prosecutor described evidence from other witnesses about the CWs post-assault emotional state: “She was upset, emotional;” “[s]he was nervous. She was quiet, withdrawn;” “[s]he broke down. She was crying, and she was weeping.” The prosecutor also described evidence about CWs physical injuries.
The dissent canvasses the transcript here and concludes that the prosecutors discussion of the evidence justified her “traumatized” comment. It quotes Salavea: “A statement about a witnesss credibility that is made without reference to the evidence or facts supporting the assertion amounts to an expression of personal opinion.” 147 Hawai‘i at 582, 465 P.3d at 1029. But Salavea’s statement doesnt mean that if a prosecutor assembles some evidence, then any personal opinion is allowed. Closing arguments frame facts. In almost any trial where a prosecutor makes a prejudicial remark, the comment will be tethered to the facts in some way.
Here, we decline to greenlight a prosecutors prejudicial comment just because the prosecutor detailed facts about an adults emotional state.
The dissent also concludes that because Browders counsel attacked CWs credibility, the prosecutors “traumatized comment was appropriate.” In Hirata, defense counsel also questioned the CWs credibility: “[T]he first thing lets talk about is the reason. . . why [CW] said what she said. ․ [I]ts attention from her mom.” The defense continued: “So caution, jurors, just because [CW] said it doesnt make it true.” “[L]ets talk about some of the inconsistencies” in the CWs testimony.
In this case, defense counsel attacked the CW in stark terms, accusing her of “lying.” We do not condone counsels use of the words “lie” and “lying.” See State v. Austin, 143 Hawai‘i 18, 50–51, 422 P.3d 18, 50–51 (2018) (opinion of the Court by Pollack, J.) (recognizing many problems with a prosecutors assertion that a witness was lying). Still, we believe that the defenses objectionable word choices do not validate the prosecutors improper argument. And, the defenses credibility challenge does not separate this case from Hirata.
Challenging the credibility of prosecution witnesses is a routine feature of most criminal trials. Not challenging the credibility of a witness may lead to claims that defense counsels representation fell below an objective standard of reasonableness. The right to cross-examination, and a closing argument that questions credibility, does not pave the way for prejudicial prosecutorial commentary.
Here, the “traumatized” comment also adds evidence that the assault occurred as the CW described it. Evidence of the CWs emotional behavior, combined with the prosecutors “traumatized” comment, suggests that the CW was in fact traumatized. So, the CW must have experienced a traumatic event, a juror may think. Thus, the CWs psychological condition becomes more evidence supporting her description of the sexual assault. And, it resembles prejudicial victim-impact evidence. Hirata, 152 Hawai‘i at 35, 520 P.3d at 233.
Contrary to the dissents reading, we do not encourage a prosecution expert to discuss CWs “trauma” in every sexual assault case. Hirata expressed concern that, in many cases, evidence of CWs trauma may be impermissible victim-impact evidence. Id. at 33 n.13, 520 P.3d at 231 n.13.
The prosecutors diagnostic and causal opinion about trauma may carry undue weight. A prosecutors words have an outsized influence on a jury. Id. at 33, 520 P.3d at 231. The prosecutors personal opinion, enhanced by their experience in sex-crimes cases, enters the jurys decision-making calculus. See Salavea, 147 Hawai‘i at 582, 465 P.3d at 1029 (prosecutors personal opinions “tend to exploit the influence of the prosecutors office”); Clark, 83 Hawai‘i at 304, 926 P.2d at 209 (“[I]mproper suggestions, insinuations, and especially assertions of personal knowledge are apt to carry much weight against the accused when they should properly carry none.”). Trust me, the prosecutor says, I know what a traumatized person looks and acts like.
But Hirata recognized that a prosecutors consistent with a traumatized person comment requires evidentiary support. There, the prosecutors “traumatized” comment lacked “evidence that could legitimately support” it because “[n]o witness testified about CWs mental health or psychological condition.” Hirata, 152 Hawai‘i at 33, 520 P.3d at 231.
This court has recognized that expert testimony on the dynamics of sexual abuse “may play a particularly useful role by disabusing the jury of some widely held misconceptions so that it may evaluate the evidence free of the constraints of popular myths.” See State v. Batangan, 71 Haw. 552, 558, 799 P.2d 48, 52 (1990) (cleaned up). Expert testimony can assist the jury in applying technical psychological concepts. But injecting the concept of “trauma” and the diagnosis that a witness has been “traumatized” without supporting expert testimony asks the jury to draw on popular myths, not avoid them.
Prosecutors have “a duty to seek justice, to play fair and square.” Hirata, 152 Hawai‘i at 33, 520 P.3d at 231. Since statehood, this court has fiercely protected a criminal defendants constitutional right to a fair trial. See State v. Yoshino, 50 Haw. 287, 290, 439 P.2d 666, 669 (1968). We do so again.
IV.
We vacate the part of the Intermediate Court of Appeals’ memorandum opinion that allowed the prosecutor to say that the witness testified “consistent with someone whos been traumatized.” The case is remanded to the Circuit Court of the Third Circuit.
Sabrina S. McKenna
Todd W. Eddins
Vladimir P. Devens
McKENNA, EDDINS, AND DEVENS, JJ.; AND GINOZA, J., DISSENTING, WITH WHOM RECKTENWALD, C.J., JOINS