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Sixth Amendment Confrontation Clause: Limiting Cross-Examination Of Accomplice Witness Violates Confrontation Clause


criminal appeals lawyer, Sixth Amendment Confrontation Clause

People v. McLeod

2014 NY Slip Op 05926

Appellate Division, First Department

Decided on: August 21, 2014

Defendant’s Right Of Confrontation Allows Defense To Impeach Credibility Of Accomplice Witness On Cross-Examination 

Blog By Stephen N. Prezioso Esq., Criminal Appeals Lawyer

Issue: Whether the trial court erred when it limited defense counsel’s cross-examination of an accomplice witness by precluding defense counsel from questioning the witness regarding prior uncharged robberies and thus did not allow the defense to impeach the credibility of the witness by revealing his bias and motive to fabricate testimony where the error may have reasonably contributed to Defendant’s conviction.

Summary: Defendant was found guilty of robbery. At trial, Defense counsel sought to question an accomplice witness, “M” (whose identity is protected) on prior uncharged robberies to which he admitted during his cooperation proffer with the People as well as the circumstances underlying his guilty plea and youthful offender adjudication for another robbery. However, M invoked his Fifth Amendment privilege. The trial court curtailed defense counsel’s cross-examination reasoning that the issues were collateral and would mislead the jury and prejudice the People. The jury found Defendant guilty Defendant appealed to the Appellate Division for the First Department. The Appellate Division held that the trial court erred in limiting defense counsel’s cross-examination regarding the burglaries of the accomplice’s testimony because the Defendant’s confrontation right is guaranteed under New York and U.S Constitutions to ensure a Defendant’s opportunity to cross-examine witnesses against him or her.

See Also: Knowing And Voluntary Plea: When A Defendant’s Plea Casts Doubt Upon Guilt, A Sentencing Court Must Inquire Further.

Holding: The Appellate Division for the First Department held that the trial court’s limitation of defense counsel’s cross-examination regarding the prior burglaries precluded Defendant from adequately impeaching the accomplice witness’s credibility and violated Defendant’s Sixth Amendment confrontation right.

A Defendant’s confrontation right is guaranteed by the New York and U.S. Constitutions and its elemental function is to ensure a Defendant’s opportunity to cross-examine witnesses against him or her. Although trial courts are accorded discretion in deciding which evidence to admit based on considerations such as prejudice of confusion of issues, their discretion is nonetheless circumscribed by the Defendant’s Constitutional rights to present a defense and confront his accusers.

Facts: Codefendant M, robbed an off-duty police officer, Erickson Peralta. The officer held M at gunpoint when Defendant attempted to disarm the officer. At trial, M’s testimony was the only evidence that demonstrated Defendant’s intent to participate in the robbery. Defense counsel sought to question M on prior uncharged robberies to which he admitted during his cooperation proffer with the People as well as the circumstances underlying his guilty plea and youthful offender adjudication for another robbery. However, M invoked his Fifth Amendment privilege against self-incrimination at trial. The trial court curtailed defense counsel’s cross-examination reasoning that the issues were collateral and would mislead the jury and prejudice the People.

     The jury found Defendant guilty of robbery in the first-degree, two counts of robbery in the second-degree, attempted assault in the first degree, and assault in the second degree. Defendant appealed to the Appellate Division for the First Department. The Appellate Division held that the trial court erred in limiting defense counsel’s cross-examination of the accomplice’s testimony because the Defendant’s confrontation right is guaranteed under New York and U.S Constitutions to ensure a Defendant’s opportunity to cross-examine witnesses against him or her.

Legal Analysis: The Appellate Division for the First Department held that the Defendant’s Constitutional right of confrontation was violated when the trial court curtailed defense counsel’s cross-examination on the prior burglaries of Defendant’s alleged accomplice who entered into a cooperation agreement with the People.

The Appellate Division held that the trial court’s limitation of defense counsel’s line of questioning concerning the witness prior crimes precluded Defendant from adequately impeaching the accomplice witness’s credibility and thus revealing his bias and motive to fabricate testimony. This was an error that may have reasonably contributed to Defendant’s conviction.

     In addition, the jury might have deemed M incredible if they had learned about his prior robberies or heard his invocation of the Fifth Amendment.

The Appellate Division held that M’s testimony, and thus his credibility, were central in proving Defendant’s mens rea; improperly curtailing Defendant’s impeachment of M. may very well have contributed to Defendant’s conviction.

As a key prosecution witness, M’s trial testimony was the only evidence that demonstrated Defendant’s intent to participate in the crime. Defense sought to question M on prior uncharged robberies in which he admitted during his cooperation proffer, but M’s attorney indicated his client’s intention to invoke his Fifth Amendment privilege against self-incrimination. Defense also sought to question M about the circumstances underlying his guilty plea and youthful offender adjudication for another robbery. The trial court abridged defense counsel’s line of questioning and held that the issues were collateral and that the jury would have been misled–and the People prejudiced, if M asserted the Fifth Amendment in the jury’s presence because the jury would not learn that M had also implicated Defendant in the uncharged crimes. However, a Defendant’s confrontation right is guaranteed by the New York and U.S. Constitutions; and its elemental function is to ensure a Defendant’s opportunity to cross-examine witnesses against him or her Delaware v. Van Arsdall, 475 US 673, 678-679 1986; People v. Hudy, 73 NY2d 40, 56-57 1988.

   The Appellate Division for the First Department held that, at a minimum, the trial court should have pursued the collateral matters by instructing the jury that it could consider M.’s invocation of the Fifth Amendment in determining his credibility. The People, not Defendant, called the witness and defense counsel sought to do more than simply have him invoke his privilege before the jury. M’s bias was not fully explored through other means nor did the precluded line of questioning involve cumulative matter already presented.

Although the jury learned of the witness’s cooperation agreement with the People, it did not learn that M. admitted to committing other robberies. Defense counsel sought to demonstrate M.’s general untrustworthiness as well we his motive to fabricate testimony in order to augment the value of his cooperation. Because the trial court precluded Defendant’s line of questioning, he was unable to make the same impeachment argument in the absence of excluded evidence. Allowing the questions would not have prejudiced the People, even if the jury had not learned that M implicated Defendant in the uncharged crimes.

The Appellate Division held that if the witness did not invoke his Fifth Amendment right and instead answered the questions, the Defendant could then show that he fabricated Defendant’s involvement in the other crimes to obtain a more favorable cooperation agreement, and thus the error may have reasonably contributed to Defendant’s conviction. Accordingly, the Appellate Division reversed the Supreme Court’s judgment.


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