N.J. Supreme Court Announces Defendant Has Right to Question Cooperating Witness About Plea Deal and Possible Sentence Exposure Even When Witness Faced Same Exposure as Defendant
Tiffany Taylor, Javon Clarke, and Michael A. Jackson were arrested and charged in connection with a burglary at the residence of L.G. Because of Clarke’s priors, a possible sentence of up to five years in prison could be enhanced to 10 years. Clarke accepted a cooperating plea offer in which he agreed to testify against Jackson and Taylor in exchange for a three-year sentence. But the trial judge urged modification of the agreement to provide for Clarke being sentenced to only 180 days in the county jail and probation.
At trial, Clarke testified that Jackson picked him up on the morning of the burglary, drove him to L.G.’s residence, and broke a window of the residence to gain entry. On cross-examination, the defense attempted to question him about his possible sentence exposure of five years’ imprisonment enhanced to 10 years to show that the offer of three years was his motivation for falsely implicating Jackson. The State objected on the grounds that the testimony would prejudice the jury because Jackson faced the same charges as Clarke. That is, the jury would discern that Jackson would face five years if convicted, which may influence them to acquit or deadlock to avoid subjecting him to that punishment.
The trial court sustained the objection, ruling that the defense could discuss the three-year offer and the actual sentence of 180 days in jail and probation but not the maximum sentencing ranges. Jackson was ultimately convicted. On appeal, the Appellate Division affirmed, rejecting Jackson’s argument that the trial court deprived him of his right to confront an adverse witness when it limited his ability to cross-examine Clarke. The New Jersey Supreme Court granted Jackson’s petition for certification.
The Court observed “[t]he Sixth Amendment to the United States Constitution and Article I, Paragraph 10 of the New Jersey Constitution guarantee the right of defendants to confront witnesses against them.” A defendant has the right to explore, via cross-examination, a witness’ motivation in testifying. Delaware v. Van Arsdall, 475 U.S. 673 (1986).
However, there are limitations on this right when confronted with competing interests such as harassment, prejudice, confusion of the issues, and the witness’ safety. Id. The proffer of a competing interest that would limit the right to confrontation via cross-examination must be closely examined. State v. Budis, 593 A.2d 784 (N.J. 1991). And in State v. Bass, 132 A.3d 1207 (N.J. 2016), the New Jersey Supreme Court instructed “[i]f a witness faces a pending investigation or unresolved charges when he or she gives a statement to law enforcement, cooperates with the prosecution in preparation for trial, or testifies on the State’s behalf, that investigation or charge is an appropriate subject for cross-examination.” In Bass, the prosecution’s only eyewitness to a deadly shooting was facing an unrelated robbery charge. The witness accepted an offer permitting him to avoid a life sentence and receive a probationary sentence on lesser charges. The trial court prohibited the defendant in Bass from eliciting testimony about the possible life sentence the witness avoided by accepting the deal. The New Jersey Supreme Court reversed, underscoring that the prospect of a life sentence “may have served as a powerful incentive for [him] to cooperate with the State as it prepared for the defendant’s trial.”
But in the instant case, both the defendant and the witness were charged with the same crime, a situation New Jersey courts have not addressed, the Court observed. Permitting the jury to know the possible maximum sentence faced by the witness would allow the jury to infer the possible punishment faced by Jackson. A jury is to determine only a defendant’s culpability and is not to concern itself with what may happen after it reaches a verdict. State v. Comforti, 250 A.2d 6 (N.J.1969).
The Court determined that the defense “was entitled to question Clarke about his subjective understanding of the benefit of his plea bargain, including what sentence he faced and what was offered in the plea agreement.” As such, the Court concluded that the trial court “erred when it barred defense counsel” from crossing-examining Clarke about his plea bargain and sentencing exposure, explaining that the defense “had the right to explore potential bias on Clarke’s part in his role as the prosecution’s key witness.”
The Court explained that any potential prejudice upon the jury could be alleviated by giving a curative instruction telling the jury not to consider possible punishment when deciding the defendant’s guilt or innocence, adding that “courts routinely use jury instructions as safeguards to adequately address concerns relating to jury nullification.”
The Court then ruled that it could not “conclude beyond a reasonable doubt that the trial court’s limitation on defendant’s cross-examination of Clarke constituted harmless error.”
Related legal case
State v. Jackson
|233 A.3d 440 (N.J. 2020)
|State Supreme Court