Cross-examining Informants (Part 3)

Justice Timpone continued in relevant part: Trial courts often withhold sentencing information from juries because the jury should not be influenced by a consideration of what will be the result of its verdict. New Jersey state courts have not addressed the scenario in which a trial court limits cross-examination into the term of imprisonment a cooperating witness avoided by testifying for the government where the defendant and witness were charged with the same crime. The Court reviews cases from other states and notes that most federal courts have based their determinations on whether the jury had otherwise heard enough information to evaluate the witness’s credibility.

Although the cooperating witness in Bass faced different charges than the defendant, the essential principles announced in Bass apply here as well. Defendant 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. This case is a particularly compelling example of the import of a fulsome right to confront adverse witnesses.

Clarke was the State’s key witness testifying at trial, and his testimony was the only evidence tying defendant to the crime. The record also reveals that Clarke acknowledged lying to police officers on several occasions about the events that transpired during the burglary. Additionally, the State acknowledged at oral argument that Clarke was extended-term eligible and accordingly could have faced up to ten years in prison. The potential for an extended-term state prison sentence may have served as a powerful incentive for Clarke to cooperate with the State.

It would be interesting to know if the defense attorney at trial attempted to make light of the cooperating witness’s extended term eligibility. Under the “persistent offender” statute, the commission of three felonies on three separate occasions (excluding fourth degree felonies) during the previous 10+ years, subjects an offender to an “extended term” sentence. An extended term means that a third-degree crime is sentenced as if it were a second degree, a second degree is sentenced as if it were a first, and a first degree can call for a life sentence.