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17. The evidence about the prosecutor's promise is
A defendant was charged with murder, and a witness testified for the prosecution. On cross-examination of the witness, the defendant seeks to elicit an admission that the witness was also charged with the same murder and that the prosecutor told her, «If you testify against the defendant, we will drop the charges against you after the conclusion of the defendant's trial.»
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Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie. A witness may always be impeached by extrinsic evidence of bias or interest, provided a proper foundation is laid.
Under Federal Rule of Evidence (FRE) 801(d)(2), a statement by an opposing party (traditionally known as an «admission by a party-opponent») is not hearsay. Under this Rule, when the opposing party's statement is offered against that same opposing party and was made in either an individual or representative capacity, it is admissible. Statements by an agent or employee concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. FRE 801(d)(2) has not been held to allow statements by prosecutors to be introduced against the government as admissions by a party-opponent.
A is correct. Evidence of the prosecutor's promise is admissible as impeachment to show bias or motive to lie. The prosecutor's statement to the witness is not hearsay because it is not being offered for the truth of the matter asserted — that the state will drop the charges against the witness. Rather, it is being offered to show the witness's bias and interest in the case having a certain outcome. If the witness believes that the state will drop the charges against him, he clearly has a motive to give testimony that would curry favor with the state, which supports a finding of bias and motive to lie. Therefore, he can be properly impeached with the prosecutor's promise to him.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. The statement is admissible, but not as an admission by an agent of a party-opponent. The defendant is introducing the prosecutor's promise against the government's case, but the prosecution is not considered a party-opponent for purposes of FRE 801(d)(2).
C is incorrect. It is true that plea bargaining is encouraged for purposes of judicial efficiency in the criminal legal system. However, plea offers by the prosecution may nevertheless be used against a witness to establish a motive to lie or bias for impeachment purposes. Prior plea bargaining is only inadmissible against the same defendant who was the party to the bargaining.
D is incorrect. For the proffered statement to be considered hearsay, it would need to be offered for the truth of the matter asserted — that the prosecutor will, in fact, drop the charges. However, the statement is being offered to establish bias or motive to lie, which is a non-hearsay impeachment purpose, and as such, is admissible as non-hearsay.