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Due Process – Exculpatory Evidence — Lenient Treatment of Prosecution Witness

State v. Dale H. Chu, 2002 WI App 98, 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.


¶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.

Of course, failure to disclose that a prosecution witness has negotiated a plea bargain in exchange for testimony violates the right to exculpatory evidence — even where the deal hasn’t been “finalized,” and the realization of benefit is more a matter of the witness’s subjective expectation see, e.g., State v. Delgado, 194 Wis. 2d 737, 535 N.W.2d 450 (Ct. App. 1995) (an ineffective assistance of counsel case, because counsel should have known the information, but the basic point is transferable to suppression of exculpatory information: a plea bargain whch provides an incentive of the witness to cooperate with the prosecution is highly relevant to impeachment). Indeed, one case goes so far as to say that even where the witness “was already severely impeached” on other grounds, failure to inform the defense that the witness testified under an immunity agreement denied fair trial, Horton v. Mayle, 9th Cir No. 03-56618, 5/10/05 (“The recurrent theme of these cases is that where the prosecution fails to disclose evidence such as the existence of a leniency deal or promise that would be valuable in impeaching a witness whose testimony is central to the prosecution’s case, it violates the due process rights of the accused and undermines confidence in the outcome of the trial”).

Relief isn’t limited to suppression of prosecutorial concessions but, rather, extends to virtually any matter — for powerful exemplars of this point, see e.g., Conley v. U.S., 1st Cir No. 04-2424, 7/20/05 (re: witness’s suggestion that hypnotism might help him “truly recall” the event; this information could have been used to impeach his ability to recall and its suppression required new trial); Silva v. Brown, 9th Cir No. 04-99000, 7/26/05 (similar, re: failure to disclose deal that witness not submit to psychiatric exam — “Impeachment evidence is especially likely to be material when it impugns the testimony of a witness who is critical to the prosecution’s case. … [E]vidence that calls into question a witness’s competence to testify is powerful impeachment material.”).


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