NJ Supreme Court Affirms Right To Cross Examine Cooperating Witness Regarding Plea Agreement

Article by Robert M. Perry, Esq

Witnesses who “cut a deal” and are testifying against defendants may be questioned about favorable plea deals they received, i.e., sweetheart deals. 

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On July 2, 2020, the New Jersey Supreme Court delivered a decision that affirmed the right of a defendant to cross-examine a witness “who cut a deal” with the prosecutor in exchange for their testimony. This case has far-reaching implications in that it is not uncommon for a prosecutor to offer a reduced sentence to a co-defendant in exchange for their testimony implicating a defendant on trial. Sometimes referred to as “singing for their supper,” this mechanism often creates a difficult dynamic for Judges.   

The Court noted in State v. Jackson that a jury’s “core” duty is to determine criminal culpability and not punishment. As such, juries are typically not permitted to consider what punishment a defendant may receive if the jury were to find him or her guilty of the crime(s) charges. However, a defendant also has a Sixth Amendment Right of Confrontation that includes the right to question a witness’ arguable motive for fabricating testimony in exchange for a better plea offer themselves. This is a particularly difficult issue when, as in Jackson, a witness was alleged to have committed identical criminal acts at the defendant. How does a defendant cross-examine a witness regarding their sentencing exposure without telling the jury the potential consequences for the defendant? 

In Jackson, the State’s key witness was subject to punishment up to ten (10) years in State Prison but received a sentence of six (6) months in exchange for his cooperation. The defendant was barred from questioning the witness regarding his maximum exposure had he not testified and been convicted at trial. The New Jersey Supreme Court reversed Jackson’s conviction, ultimately siding with a defendant’s Right of Confrontation. The Court also suggested that a Model Jury Charge be crafted so that juries are instructed as to the significance of the testimony.     

This case is an important victory for due process rights in New Jersey. It is a hallmark of our Justice System that defendants enjoy a Constitutional Right to confront witnesses who testify against them. By constraining a defendant’s ability to challenge the credibility of a cooperating co-defendant or witness, that Right is diminished.    

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