Jersey City, New Jersey – The Confrontation Clause of the United States Constitution is one of the most important provisions in criminal procedure. It requires a criminally accused person to be able to cross-examine the witnesses against him or her. This includes all witnesses, police, civilian and co-defendants.

In State of New Jersey v. Michael A. Jackson, the Supreme Court of New Jersey addressed whether a defendant is entitled to cross-examine a testifying co-defendant about the details of the co-defendant’s plea agreement with the State, including the maximum penalties the co-defendant was exposed to. Mr. Jackson and his co-defendants were charged with burglary, theft and conspiracy to commit burglary. One of the co-defendants, Javon Clarke, had reach a plea agreement with the State to testify against Mr. Jackson in exchange for a recommended sentence lower than the maximum exposure. It goes without saying that the maximum exposure is one of the main motivating factors to accept a plea agreement and could be relevant to the testifying co-defendant’s motivation and willingness to lie to secure a favorable plea agreement.

Mr. Jackson’s defense attorney asked Mr. Clarke about his maximum exposure three times, and all three times the court admonished him not to do so. The court also instructed the jury not to consider the question. Ultimately, the jury convicted Mr. Jackson of conspiracy to commit burglary. The Appellate Division affirmed the conviction, but the Supreme Court reversed the conviction on the basis that the Confrontation Clause entitled Mr. Jackson to ask about the maximum exposure because it was relevant to the witness’s potential bias. The Court reached this conclusion after evaluating all the details, including that the witness had lied to the police previously, that he was extended term eligible and could have received up to ten years in prison, and that, as a result of his plea agreement, he received only 180 days in jail. The Court also noted that the State argued the floor of Mr. Clarke’s plea agreement, the 180 days, which made application of the trial court’s ruling against reference to potential sentencing inconsistent.

Testifying co-defendants who reached plea agreements with the State in exchange for their testimony are common. This decision should ensure that defendants facing testimony of co-defendants will be entitled to exercise the full privilege of the Confrontation Clause to challenge the witness’s bias and motivation to lie.

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