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Confrontation – Bias: Pending Charges – Sentence Received by Prosecution Witness without Plea-Bargained Benefit

State v. Bryan Hoover, 2003 WI App 116, PFR filed 6/26/03
For Hoover: Glenn C. Cushing, SPD, Madison Appellate

Issue/Holding: The defense wasn’t entitled to cross-examine a prosecution witness about the sentence he received on an otherwise unrelated charge, where the witness wasn’t offered a benefit in exchange for his testimony. Allowing the defense to cross-examine on the witness’s perception of what benefit he might receive sufficiently accommodated the right of confrontation. ¶¶14-23.

Not much in the way of analysis by the court, though there is this potentially troublesome extension of State v. McCall, 202 Wis. 2d 29, 549 N.W.2d 418 (1996):

¶20. The rationale of McCall is controlling here. In the absence of any sentencing-for-testimony agreement, it would be irrelevant to question Anderson-El about his sentence. Defense counsel was able to and, in fact, did question Anderson-El about his charges and whether he expected to get a benefit from testifying. However, eliciting information about the actual sentence imposed was not relevant to any incentives the prosecution may have given Anderson-El for testifying on behalf of the State. Moreover, testimony concerning the actual sentence imposed might confuse the jury into believing the court was a party to some unproven sentencing-for-testimony agreement. As in McCall, the record does not support such a speculative theory.

The problem, then, is that the decision might be read to say that no matter what you can’t go into the actual sentence received absent agreement for the testimony. But what difference does it make whether a concession was offered for testimony? The judge is no more a part of that sort of plea bargain, so the rationale of jury confusion that the court was a party to the agreement applies equally. (McCall, by the way, dealt with dismissal of charges, unaccompanied by a plea bargain, which is at least seemingly different from a case that goes to disposition.) Why, then, shouldn’t the defense be allowed to get into the sentence actually received? No good answer is given. The court does mention that the defense put the witness’s bias before the jury in a number of ways (such as priors), ¶17, but on the issue of his “personal motivation for coming forward” his claim of “good intentions” apparently is conclusive. It’s fair to read this as a fact-specific case: the just-mentioned opportunity to explore bias was sufficient; more importantly, the court itself saw the evidence of guilt as “overwhelming,” ¶28. But that doesn’t explain ¶20.

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