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Witness – Impeachment – Deferred Prosecution Agreement

State v. Dale H. Chu, 2002 WI App, PFR filed 4/23/02
For Chu: Andrew Shaw

Issue: Whether defendant was denied his right to exculpatory evidence when the state failed to disclose that a prosecution witness had received favorable treatment in another case.

Holding:

¶37. As the State notes, prosecutions that end in dismissal and ordinance violations are not admissible to impeach a witness because they are not ‘evidence that the witness has been convicted of a crime.’ See Wis. Stat. § 906.09(1). Although Chu may be correct that the jury may have viewed Weiss differently if it had known about the prior incidents, he fails to explain how the evidence would have been admissible. It was not automatically admissible, and Chu does not identify grounds for its admissibility.

¶38. Instead, Chu’s entire argument is based on his premise that Weiss had a motive to lie on the witness stand because of the deferred prosecution agreement. He cites United States v. Croucher, 532 F.2d 1042, 1045 (5th Cir. 1976), for the proposition that prior arrests that have not led to a conviction may be used to demonstrate a witness’s motive to strike a good bargain with the government. In doing so, he appears to argue that Weiss would lie to improve her bargaining position with the State with respect to charges arising from her arrest.

¶39. Here, however, Weiss’s criminal charge had been dismissed with prejudice by the time she testified. Indeed, the charge was dismissed even before Chu made admissions to Weiss. Additionally, Weiss had already paid the forfeiture associated with the ordinance violations by the time of trial. Accordingly, Weiss had no need, and thus no motive, to strike any bargain with the government. To the extent Chu is attempting to argue that evidence of the deferred prosecution agreement would have been admissible to show Weiss’s motive to lie, we reject his argument.

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