The question raised by the decision is whether it should be interpreted as a broad holding that the sentences of cooperating witnesses are never relevant, and defendants can be prohibited from questioning such witnesses about them in all cases.
Here, Anderson-El did not even have a formal plea agreement that required him to testify. This is not that unusual, however. A great deal of witness testimony is obtained not by formal agreements, but informal and unspoken ones.
Nevertheless, the courts decision is broad enough to include witnesses who do have formal agreements to testify. The key consideration was that there was no sentencing-for-testimony agreement, not whether there was a recommendation from the prosecutor-for-testimony agreement.
This should be true in all cases; unless there is substantial impropriety by the court, a defendant should never be able to inquire into the witnesss sentence.
Nevertheless, the decision here is overbroad, because it does not question one aspect of the trial courts order which was error when the trial court said, I dont want it implied that because of his cooperation he was anticipating a break from the Court.
Even if it is irrelevant whether he actually got a break from the court, because the recommendation from the prosecutor (not the sentence of the court) is the only break such a witness gets, nevertheless, whether the witness was anticipating a break from the sentencing court goes to his subjective motivations and clearly is relevant.
A defendant has every right to ask a witness whether he hoped that the judge in his own case would be lenient if he testified against the defendant.
As the Supreme Court stated in McCall, This court and the United States Supreme Court have recognized that a defendants opportunity to explore the subjective motivations for the witnessess testimony is a necessary ingredient for a meaningful cross-examination. McCall, 202 Wis.2d, at 37.
Here, the court of appeals found that, at Anderson-Els plea hearing, there was no mention of his cooperation. However, the decision is silent as to whether there was any mention of it at Anderson-Els sentencing.
If Anderson-El had requested leniency at sentencing because of his cooperation, clearly Hoover should have been allowed to question whether Anderson-El anticipated getting a break from the court, as well the prosecutor, because it is relevant to his subjective motivations.
It is also arguable that, if the witness feels he did get a break from the judge, this fact, as well as the sentence itself, could be relevant to his subjective motivations.
The court of appeals decision suggests that there is a line of demarcation between the plea hearing and the sentencing when deciding the witness subjective motivations.
If a defendant can make a connection between the sentences and the witnesses subjective motivations, however, the decision could be distinguishable.
– David Ziemer
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David Ziemer can be reached by email.