Cross-Examination on Pending Charges

Can the defense question a State’s witness about pending charges? May the State question the defendant or defense witnesses on their pending charges? The Rules of Evidence allow impeachment by conviction of a crime under Rule 609, but nothing in the rules speaks to impeachment by evidence of pending charges specifically. The question comes up frequently enough that I wanted to write about it. Read on for the answer.

State Witnesses with Pending Charges

A line of cases establishes that the defendant has a 6th Amendment right to confront the witness with evidence of potential bias or prejudice (in addition to any due process rights under the 5th Amendment). In U.S. v. Alford, 282 U.S. 687 (1931), the defense was prohibited from crossing the witness on the fact that he was residing in the custody of U.S. Marshals. Reversing, the Supreme Court stated it was proper to place the witness in his environment (or “setting”), both as matter of basic context and as potential impeachment: “Even if the witness was charged with some other offense . . . petitioner was entitled to show by cross-examination that his testimony was affected by fear or favor growing out of his detention.” Alford at 693.

Alford didn’t explicitly identify a 6th Amendment confrontation right, but later cases relied on Alford to do just that. In Smith v. Illinois, 390 U.S. 129 (1968), the Supreme Court found a confrontation violation where the defense was precluded from questioning the government witness on his true identity once the witness admitted he was testifying under an alias. And in Davis v. Alaska, 415 U.S. 308 (1974), the Court again found a 6th Amendment violation where the trial court refused to allow cross-examination into the primary government witness’ status as a juvenile probationer. The witness could have been “subject to undue pressure from the police and made his identification under fear of possible probation revocation.” Davis at 311. This was so even considering the government’s interest in the confidentiality of juvenile records: “Whatever temporary embarrassment may result [to the witness] . . . is outweighed by the petitioner’s right to probe into the influence of possible bias in the testimony of a crucial identification witness.” Davis at 319.

Taken together, the above line of cases establish a broad confrontation right under the 6th Amendment to allow inquiry into all avenues of potential bias of the State’s witness arising from the relationship between the government and the witness, including whether the witness is in the custody of the government, whether the witness is or may be cooperating with the government, or whether the witness is on probation.

We get to pending charges specifically in State v. Prevatte, 346 N.C. 162 (1997). There, the court followed Davis and granted a new trial in a murder case where the defense was prohibited from questioning a primary State’s witness on his pending forgery and uttering charges. Compared to the witness in the Davis case, “The State had a stronger weapon to control the witness.” Id. at 164. The court concluded: “The effect of the handling of the pending forgery and uttering charges on the witness was for the jury to determine. Not letting the jury do so was error.” Id. Similar results can be found in State v. Evans, 40 N.C. App. 623 (1979); State v. Rankins, 133 N.C. App. 607 (1999); State v. Royster, 208 N.C. App. 284 (2010) (unpublished), State v. Harris, 165 N.C. App. 905 (2004) (unpublished), among others.

Limits to Cross-Examination on Pending Charges

That’s not to say the right is without limitation. The trial court has wide discretion to regulate the manner of cross-examination and to limit cumulative and repetitive evidence. Cases in this area sometimes cite that discretion in upholding limitations on cross. Where the witness is thoroughly impeached on other grounds and extensive inquiry is allowed into the potential bias and motivation to testify, the trial court’s ruling to exclude pending charges may be upheld on appeal. See State v. Reaves, 132 N.C. App. 615 (1999), State v. McNeil, 350 N.C. 657 (2000), and State v. Earnhardt, 230 N.C. App. 144 (2013) (unpublished). In all of those cases, however, the appellate courts still deemed it error to exclude the pending charges—the error just wasn’t prejudicial under the circumstances of the cases.

Does It Matter Where the Charge Is Pending?

In State v. Alston, 233 N.C. App. 152 (2014), the two State’s witnesses were impeached with various types of evidence: charges pending in the same prosecutorial district, criminal convictions, sentencing agreements, charges dismissed pursuant to a plea bargain, and prior bad acts. The trial court prohibited the defense from questioning the witnesses as to some of their charges in other districts. Under those circumstances, “the trial court was not unreasonable in barring defendant from further cross-examining the witnesses regarding their pending charges in other counties.” Id. at 163. Does that mean that the charges must be pending in the same district? I don’t read Alston that way. For one thing, the trial court in Alston actually allowed evidence of a pending probation violation from another district that was a part of a plea bargain with the State, and allowed the defense to ask the witnesses about any expectations of favor from the State in the other districts arising from their testimony. And in Alston, like the harmless error cases above, there was substantial other impeachment evidence. Alston called the evidence of charges pending in other districts “marginally relevant”, but I think that was so under the facts of the case. In other words, the charges from other counties was cumulative (and therefore marginally relevant) in light of the other, considerable impeachment evidence in the case. Alston at 161. Thus, the probative value of the pending charges is higher when the charges are in the same district, but that’s not the only consideration. The nature of the pending charges is probably another important factor, as is the other impeachment evidence in the case.

Does It Matter if the State’s Witness Is its Primary Witness?

In State v. Hoffman, 349 N.C. 167 (1998), the N.C. Supreme Court found error when the trial court excluded evidence of pending charges of a corroborative (versus a primary) witness. State v. Reaves, 132 N.C. App. 615 (1999), applied Hoffman to explicitly reject any such distinction: “Any implication that [the holding in Prevatte] might also be limited to principal or key prosecution witnesses was rejected when our Supreme Court applied the same rule to cross-examination of a corroborating witness.” Reaves at 621. However, Reaves and Hoffman found that the significance of the witness to the case is relevant to the prejudice analysis on appeal, and Hoffman (like Reaves) found the trial court’s error in excluding this evidence was harmless under the facts of the case.

Defense Witnesses with Pending Charges

So does this mean that the State can cross the defendant or other defense witnesses on any pending charges they may have? No, they can’t, at least not on the ground of bias. So holds State v. Graham, 118 N.C. App. 231 (1995). There, the trial court allowed the State to question a defense witness on his pending charges. Granting a new trial, the court stated: “We now hold that evidence of a pending charge or indictment may not be offered to show bias of a defense witness.” Graham at 238. The court found that the logic of allowing the defense to question the State’s witness on pending charges simply did not apply to defense witnesses—the defendant doesn’t have the same “weapon of control” over a defense witness that the State may have over a State’s witness with pending charges. Further, although not explicitly mentioned in Graham, the right of the defendant to inquire into pending charges is founded in the 6th Amendment right to confrontation. The State has no confrontation right under the 6th Amendment; the text of the amendment speaks to the rights “of the accused”. The State still can seek to introduce the conduct underlying a pending charge if such evidence is admissible under Evidence Rule 404 or 608. But, there is no constitutional basis for the State to question defense witnesses on pending charges.

What about dismissed charges?

Under the logic of Davis and Prevatte, the fact that a charge was dismissed may be admissible under some circumstances. The N.C. Supreme Court has allowed this in the past, well before Davis. In State v. Roberson, 215 N.C. 784 (1939), the court held that it was reversible error for the trial court to exclude evidence that the State’s witness had pending charges for which the prosecutor had entered a nolle prosequi (a previous form of dismissal). The charge could be reinstated, and the failure to allow questions on that point created a misleading impression for the jury that the witness was completely disinterested in the proceedings. I think the probative value of the dismissed charge depends on the circumstances. In many cases, a dismissed charge may not be very probative—something minor, dismissed long ago by another prosecutorial agency probably shouldn’t be allowed. On the other hand, evidence that the district attorney dismissed a related criminal charge against a cooperating witness in the present prosecution is undoubtedly probative, and exclusion of that evidence could well violate the defendant’s confrontation (and due process) rights.

Takeaway

Defense attorneys may want to request permission from the trial court to cross-examine the State’s witnesses on any pending or dismissed charges that show potential bias or motive to testify against the defendant. Consider filing a pretrial motion in limine on the subject and cite the 6th Amendment right to confrontation, along with any other statutory or constitutional grounds that support the motion (such as the 5th Amendment). Explain the value of the evidence in light of the facts of the case and the other impeachment evidence. If the evidence is excluded by the trial court, be sure to make a formal offer of proof by having the witness answer the proposed questions under oath, offer any documentation of the charges into evidence at the motion hearing, and renew the objection at trial to preserve the issue for appellate review.

P.S.  I hope everyone has a safe and happy Halloween!