Cross-examining Informants (Part 1)

by | Nov 24, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

On July 2, 2020, the New Jersey Supreme Court decided the case of State v. Michael A. Jackson. The principal issue concerned the permissible scope of cross-examining a cooperating witness when the defendant faces the same charges as the cooperating witness.

Justice Timpone wrote for a unanimous Court in relevant part: The Court addresses whether a defendant facing the same charges as a cooperating witness should be barred from exploring that adverse witness’s sentencing exposure. In November 2014, L.G. returned home and observed a man exiting L.G.’s front door, carrying L.G.’s television. L.G. ran inside his house and found the back door ajar and his television, laptop computer, and gaming system missing. He described the man carrying the television to police officers. He said that he suspected his ex-girlfriend Tiffany Taylor’s involvement because he saw her car several times before and after the crime.

The police detained two men who fit the suspect’s description, and L.G. identified Javon Clarke as the person carrying his television. The other detainee was defendant, who L.G. recognized as Taylor’s ex-boyfriend. Based on L.G.’s identification, the police arrested Clarke, who provided a statement that same day inculpating defendant and Taylor, who were each indicted for burglary, theft, and conspiracy to commit burglary.

At trial, Clarke testified that defendant participated in the burglary of L.G.’s house. On cross-examination, the defense highlighted several discrepancies between the statement Clarke initially gave to the police and his in-court testimony. Counsel then asked, “Now, when you gave the plea it was a plea bargain as you understood it, correct?” Clarke responded affirmatively and also agreed he was represented by an attorney. When defense counsel asked, “And your attorney explained to you that you were facing three to five years for a third-degree burglary, correct?” the State objected. At sidebar the court instructed, “I want to stay away from the ranges because indirectly that implicates what a jury might be exposed to think if your clients are charged with the same crime.” The court gave a curative instruction and indicated that the jurors should not consider the last question. Defense counsel inquired twice more about sentencing ranges in the course of the trial and was again directed to stay away from that topic. The court gave another curative instruction. Cross-examination ultimately revealed only that Clarke would avoid state prison and receive 180 days in county jail in return for providing truthful testimony. 

A fair way for the Court to balance the competing concerns would be to only permit defense counsel to reference the maximum sentence and plea agreement, with reference to the specific crime or degree of the crime. This would allow the defense to attack the cooperating witness’s credibility and motive to fabricate without indirectly telling the jury the sentence that his client is facing.