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Highlighting the Adverse Witness’s Deal With the Prosecution |

Emphasize the witness’ deal with the prosecution

In criminal cases, it is common for one or more prosecution witnesses to have made a written deal either for immunity or a plea to lesser charges or the promise of some good word from the prosecutor at sentencing. A criminal defendant has a Sixth Amendment right to ask about the meaning of the agreement in order to establish the witness’s incentive to testify to the satisfaction of the prosecution.

An experienced criminal defense attorney will question the prosecution witness about the severity of the possible penalties on any pending criminal charges the witness faces; the witness’ expectations of leniency; and whether the prosecutor explicitly promised leniency or the witness just hopes for it. Specifically, the criminal defense defense attorney should elicit testimony about the following:

  • The maximum sentence the witness is facing.
    The maximum and, if there is one, the mandatory minimum prison sentence the witness faces on his guilty plea. If the prosecutor agreed to accept a plea to less than all the charges in the indictment, then the defense attorney should establish the sentences carried by the charges that the prosecutor agreed to dismiss. Fear of any sentence can motivate a witness to testify falsely. However, the greater the possible or likely sentence, the greater the fear and the motive to fabricate and embellish.
  • That the witness has a written agreement with the same prosecutor who brought the charges against the defendant.
  • That the witness and prosecutor signed the agreement — not the judge, not the jury.
  • That under the agreement, only the prosecutor can ask for a reduced sentence.
  • [If applicable] If the prosecutor does not ask for a reduced sentence, the witness must get a mandatory minimum sentence of so many years.
  • That the judge cannot give any less than the mandatory minimum unless the prosecutor asks.
  • That the prosecutor has the sole discretion as to whether to request a sentence reduction and a charge dismissal; the prosecutor decides — not the judge, and not the jury.
  • That the agreement says that the witness must give full and truthful testimony, but under the agreement, the prosecutor decides if the testimony is full and truthful.
  • That the prosecutor, and only the prosecutor, decides whether the witness has fulfilled his obligations under the agreement and whether the witness gets what was promised.

The defense attorney’s cross-examination of the witness should focus on the witness’s perceptions and expectations, not the prosecutor’s explicit promises. By the end of the cross-examination, it should be clear to the jury that the witness knows that (1) the prosecutor’s sentencing recommendation carries great weight and (2) the prosecutor will condition that recommendation on hearing a version of events that helps convict the defendant. That is, the witness expects that if he delivers damning testimony, the prosecutor will do what he can to lessen the witness’s sentence.

An experienced criminal defense attorney will elicit this type of testimony even if the prosecutor denies making any promise or agreement with the witness. The witness’s motive to lie arises from the witness’s subjective belief or hope that his performance as a prosecution witness will earn him leniency on a pending or threatened prosecution. Witnesses routinely hold onto such hopes even when the prosecutor explicitly tells them he will not intervene on their behalf in a pending case, such as one in another jurisdiction. Thus, if the prosecutor denies making any promise or deal, and the judge refuses to allow questioning of the witness on that ground, this violates the criminal defendant’s Sixth Amendment right to confront the witnesses against him.