Crime & Federalism

Does a defendant have the right under the Confrontation Clause to flesh out before the jury details of a plea agreement?  Yes.  The constitutional right to cross-examination demands that a defendant be permitted to a ask not only whether a witness is biased, but also why the witness might be biased.  Thus, the "whether and why" rule.  United States v. Schoneberg, No. 03-30127 (9th Cir., Nov. 17, 2004) (Kleinfeld, for Nelson and Fisher, JJ.)

Jeremiah Schoneberg and Robert Woodbury were old friends.  During high school, Woodbury sold marijuana to Schoneberg.  They kept in touch after high school, although the extent of their friendship is uncertain.

According to Woodbury, Schoneberg was involved in drug and money laundering conspiracies.  Although Woodbury was the head of the group, the government gave him a good deal if he ratted on his underlings.  Woodbury copped a plea that would require him to serve less than 4 years.

At trial, the defense counsel tried running Woodbury through the crucibile of cross-examination but was stopped by the judge. 

Schoneberg's attorney got Woodbury's plea bargain into evidence, but was not permitted to cross examine Woodbury about whether his testimony was affected by the government's promise to move for a sentence reduction if his testimony satisfied the government. The trouble started when defense counsel asked Woodbury to confirm that under his agreement, "the only party that is going to determine whether you're telling the truth today, as you're standing on the witness stand, is the United States government, the United States Attorney." Woodbury answered, "I don't know sir. I don't know how the law works." Before defense counsel could begin punching away at what was arguably an evasive and misleading answer, the judge said, "What are you getting at? The jury decides whether he's telling the truth. " Defense counsel read Woodbury one of the paragraphs of his plea agreement and asked him to confirm that it meant "[t]he United States, those folks right there, a party to this lawsuit, are the sole people that determine whether you're telling the truth or not." Woodbury again claimed not to know "how the law works," [See, Ethical Question, below].  and the prosecutor objected to defense counsel's question, saying "that's a misrepresentation. " The judge agreed, "[T]he jury in this case is the sole determiner of the credibility of the witnesses in this case."  about that it's the government's obligation to determine the truth, because it isn't. It's the jury's determination in this case." Defense counsel was unsuccessful in persuading the district judge that he was entitled to explore Woodbury's incentive to please the government.

Judge Kleinfeld continued:

The constitutional right to cross examine is subject always to the broad discretion of a trial judge to preclude repetitive and unduly harassing interrogation, but that limitation cannot preclude a defendant from asking, not only whether the witness was biased but also to make a record from which to argue why the witness might have been biased.  Exposure of a witness' motivation in testifying is a proper and important function of the constitutionally protected right of cross-examination.

Moreover, the error was reversible:

The importance of the testimony to the case, presence or absence of other evidence corroborating or contradicting the witness, extent of permitted cross-examination, and overall strength of the prosecution's case are among the factors we consider in determining whether the error is harmless.

Here, the sole issue in the case was whether the jury believed Woodbury or Schoneberg.  Woodbury's word was the only inculpatory evidence.  As such, the conviction must be reversed.

Ethical Question: Why didn't the AUSA stop the proceedings to tell the judge that he had explained the plea bargaining process to Woodbury?  If the AUSA had explained the process to Woodbury, then he knew or should have known that Woodbury was perjuring himself.  But the AUSA did nothing to stop the witness from committing a felony by lying to the judge and jury.