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 [...]
Faculty Coordinators
