Cross-examining Informants (Part 4)

by | Dec 3, 2020 | Blog, Criminal Law, Monmouth County, New Jersey, Ocean County

The Court concluded with the following in relevant part: The jury should have been made aware that Clarke entered into a plea bargain with the State and that, by virtue of his plea bargain, Clarke faced only 180 days in county jail instead of a lengthy term in state prison. Defense counsel had the right to explore potential bias on Clarke’s part in his role as the prosecution’s key witness.

The core of the jury’s duty is to determine criminal culpability, not punishment. Especially in a case like this, the trial court should instruct the jury not to speculate about or consider a defendant’s potential sentence when deciding whether the State has proven the charges alleged beyond a reasonable doubt. The Court refers to the Committee on Model Criminal Jury Charges the development of a Model Criminal Jury Charge addressing this situation.

A jury charge was given here, and courts routinely use jury instructions as safeguards to adequately address concerns relating to jury nullification. The Court does not favor a process in which trial judges perform a generalized gatekeeping function and try to decide whether cross-examination would adequately convey enough information about a witness’s credibility without allowing questions about the witness’s sentencing range, but the Court explains there is still a place for objections under N.J.R.E. 403.

The trial court’s error here was compounded at summation when the prosecutor was permitted to take advantage of the floor of Clarke’s sentencing range to make the argument that the plea deal of three years was not so good. The trial court failed to apply its ruling consistently. The manner in which the prosecutor exploited the trial court’s rulings, moreover, was improper.

The State substantially premised its case on the jury’s acceptance of Clarke as a credible witness. Had the jury been aware that Clarke was potentially facing an extended term of ten years in state prison when taking a plea deal of 180 days in county prison, it may well have drawn an inference of bias, which could have perhaps yielded a full acquittal. The Court cannot conclude beyond a reasonable doubt that the trial court’s limitation on defendant’s cross-examination of Clarke constituted harmless error. And the court’s general instruction was not sufficient to overcome the imbalance created through its inconsistent approach to the witness’s sentencing exposure.

The New Jersey Supreme Court has referred to prosecutorial errors like this during summation as occurring “with mind-numbing frequency.” The dynamic at the end of a trial is that if the attorneys did their jobs, they would be both emotionally-invested and exhausted. From a prosecutor’s standpoint, it is easy to see the temptation to say anything that they can to ensure a conviction. Then, they can go back to their office and feel like they won and it is the appellate attorney’s job to keep the conviction in place. If the appellate prosecutor fails, the trial prosecutor will get another chance to try the case again if the conviction is reversed. All the while, the defendant will likely be spending years in prison while waiting for another shot at a fair trial.