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State v. Dixon6/3/2005
with sworn testimony rather than with statements given to law enforcement officers. Thus, where the Arizona court was concerned that the agreement required the witness to stick with one story regardless of its truthfulness, requiring the witness to testify consistently with previous sworn testimony might seem to alleviate or abate questions about the truthfulness of the previous testimony. In State v. Rivera, 207 Ariz. 383, 388, 86 P.3d 963 (Ariz. App. 2004), however, the Arizona Court of Appeals refused to distinguish Fisher on the ground that the Rivera witnesses agreed to testify truthfully as well as consistently with previous statements:
"We do not agree that such a distinction meaningfully addresses the concerns that gave rise to the law expressed in Fisher. Fisher is designed to preserve the role of a trial as the crucible by which a jury evaluates the truthfulness of testimony. See 176 Ariz. at 74, 859 P.2d at 184. Thus, Fisher prohibits the State from "pre-scripting" testimony by conditioning a witness's plea agreement on her rendition of a particular version of events. Id. Even if the witness avers in her plea agreement that the specified version of events is true and that the witness will so testify at trial, that avowal is made when the witness is not subject to the testing and confrontation her testimony would receive at trial. Once having entered the agreement, however, the witness is compelled by the desire to preserve her plea agreement to hold to the specified version of events at trial regardless of its truth."
The State, stating that there is a split in authority as to whether a consistency agreement affects a defendant's right to a fair trial, places its reliance on People v. Jones, 236 Mich. App. 396, 600 N.W.2d 652 (1999), app. denied 461 Mich. 994 (2000), as counter to the Arizona cases. In Jones, four witnesses entered into use immunity agreements that provided as follows:
"'IN THE MATTER OF [Witness], that if [Witness] provides a truthful statement to the Detroit Police Department concerning his knowledge of the killing of Tyrone Hackett and testifies truthfully in all trials, proceedings and hearings in connection with that killing the Wayne County Prosecutor's Office will not use [Witness'] testimony to bring charges against him.'" 236 Mich. App. at 399.
The Court of Appeals commented on the language of the agreements:
"While it would appear from the text of the immunity agreements that the witnesses agreed to give a truthful statement to the police in the future, that was not the agreement contemplated by the parties. It is undisputed that the police statements referred to in the immunity agreements were those given by the witnesses when they were first arrested." 236 Mich. App. at 399.
The trial court granted a new trial on the ground that the prosecutor's actions with regard to the immunity agreements deprived the defendant of a fair trial. The Michigan Court of Appeals disagreed and held that the immunity agreements had not resulted in a miscarriage of justice. 236 Mich. App. at 404-09.
The circumstances of the present case differ somewhat from those in Jones and cases discussed in Jones in that what is at issue is consistent and truthful testimony as a condition of Hall's probation rather than as a term of a plea agreement. Thus, with regard to the probation order, there was incentive for Hall to confirm his prior account but no balancing incentive that he not enter into an agreement unless his prior account was true. Examination of the record, however, shows that Hall's plea agreement also contained the requirement that he "testify on behalf of the State in a consistent and truthful manner as
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