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State v. Dixon6/3/2005
set forth in his inquisition in any trial that he is requested to do so by the State."
The State incorporates Jones into its argument by stating that the Jones court approved a three-part test to determine if a consistency agreement violates a defendant's constitutional rights and then applying the test to the facts of the present case. In fact, the three-part test touted by the State is not the test applied by the Michigan court, but is instead only one factor considered by the court. That factor consists of three safeguards of a defendant's right to a fair trial said by the Michigan court to be used when the State gives a witness something in exchange for his or her testimony:
"These safeguards include (1) full disclosure of the terms of the agreements struck with such witnesses, (2) the opportunity for full cross-examination of such witnesses regarding the agreements and their effect, and (3) instructions cautioning the jury to carefully evaluate the credibility of witnesses who have been induced by agreements with the prosecution to testify against the defendant." [Citations omitted.] 236 Mich. App. at 405.
The State contends that the three procedural safeguards were followed in the present case. There was (1) full disclosure of the terms of the agreement, (2) the opportunity for full cross-examination of Hall, and (3) an instruction cautioning the jury to carefully evaluate the credibility of accomplice witnesses. Dixon argues that, because he was not permitted to introduce Hall's probation order and confront him with it, he did not have the opportunity to fully cross-examine Hall about it. Review of the cross-examination of Hall, however, shows that defense counsel handed Hall the sentencing journal entry at issue here and questioned him about it. Defense counsel also questioned Hall about the pertinent terms of his plea agreement. It appears that there was a full opportunity to cross-examine the witness. With regard to a cautionary instruction, Dixon contends that the accomplice witness instruction did not satisfactorily safeguard his right to a fair trial because it did not caution the jury to carefully evaluate the credibility of a witness who had been induced by an agreement with the prosecution and an attendant probation condition to testify against him.
The Michigan court, in approving a bargain for specific testimony, reasoned that the prosecution ought to be able to proceed with certainty in the truthfulness of a witness' pretrial statement. See 236 Mich. App. at 405-08. The Nebraska Supreme Court, in State v. Burchett, 224 Neb. 444, 456, 399 N.W.2d 258 (1986), also reasoned that the prosecution ought to be able to rely on the truthfulness of a witness' pretrial statement. But the Nebraska court did not conclude, as a result, that a bargain for specific testimony was acceptable. The Nebraska court considered a challenge to the testimony of an accomplice witness who had given several different versions of the crime before implicating the defendant. The Nebraska court recognized that the prosecutor treated the final version as truthful for purposes of the plea agreement entered into with the witness and as part of the agreement required the witness' truthful testimony. The prosecutor, however, did not include in the bargain a requirement that the witness testify consistently with his final statement. In the court's view, if the witness had been required to testify in conformance with his final statement, his testimony would be so tainted as to require its preclusion. Because the requirement was that the witness testify truthfully, his testimony was admissible. 224 Neb. at 456-57.
We think that Fisher and Rivera represent the better view. Plea ag
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