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May 26, 2006

The court reverses a conviction in State v. Strowder because the trial court didn’t permit defense counsel to cross-examine the co-defendant, who’d copped a plea and was testifying for the state, about the potential penalty he’d faced if he hadn’t worked out a deal. Howard, the co-defendant, was facing 100 years, and wound up with eight after a plea. The state argued that what Howard could actually get was irrelevant; the proper focus was on what Howard believed he was facing. While that argument is correct – the co-defendant’s subjective belief is the relevant inquiry for bias – the court found that Howard’s equivocations about how many counts he was looking at warranted full cross-examination as to the penalties.

Strowder cites approvingly, and at some length, the Hamilton County Court of Appeals decision in State v. Gonzalez, which deals with the subject in much more detail. In addition to discussing why the focus should be on the co-defendant’s subjective belief, Gonzalez sets up a two-part test for determining how far defense counsel can go in cross-examination: since the exposure of a witness’ bias is a "core value" of the right of confrontation, the appellate court will review that de novo, but once defense counsel has been allowed to point that out, the trial court can impose limits on how much counsel can "hammer the point home," and the court’s decision will be reviewed only for abuse of discretion. It’s an interesting case, and one a defense lawyer should have handy when faced with the prospect of cross-examining an accomplice who’s turned state’s evidence.

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