There is no honor among thieves, and that is a good thing for prosecutors

Jason Bennyhoff

Assistant District ­Attorney in Fort Bend County

Daryoush Behbood

Law Student, University of Texas School of Law

How to utilize the testimony of an accomplice witness

In every prosecutor’s career, there will come a day when the prosecution will need to call an accomplice witness to testify against a co-defendant on trial. For those prosecutors for whom that day has not yet come, this article is designed as a primer on the potential pitfalls attendant to accomplice witness testimony, including pre-trial issues of negotiation and notice of plea agreements; suggestions on how to ensure the cooperation of an accomplice at trial; the corroboration requirement for accomplice witness testimony enumerated in the Code of Criminal Procedure; and charging issues that accompany the use of accomplice witness testimony.

Who is an accomplice?
The Texas Court of Criminal Appeals has defined “accomplice” as “a person who participates in the offense before, during, or after its commission with the requisite mental state.”1 The Texas Court of Criminal Appeals has further held that mere presence at the crime scene will not make a person an accomplice, nor will being aware of the crime and failing to disclose it, even if that witness intentionally conceals the crime.2 “An accomplice must have engaged in an affirmative act that promotes the commission of the offense that the accused committed.”3
       There are two types of accomplices: 1) accomplices as a matter of law, and 2) accomplices as a matter of fact.4 A witness who is or could be indicted for the same offense as the accused or for a lesser-included offense arising from the same transaction is an accomplice as a matter of law.5 When there is no doubt that a witness is an accomplice as a matter of law, the court must instruct the jury that the witness is an accomplice as a matter of law.6 Where there is conflicting evidence as to whether a witness is an accomplice as a matter of law or where it is not clear that the witness is an accomplice, the trial court should leave it to the jury to decide whether a witness is an accomplice as a matter of fact.7
    Even if an accomplice as a matter of fact cannot be charged with the offense, the person must still engage in an affirmative act that promotes the commission of the offense. For instance, in Druery, neither the defendant’s girlfriend nor his friend were accomplices as a matter of fact even though they were both present during the murder, helped dispose of the gun and body, and received payment after the murder.8 This is because the purported accomplice “must still be susceptible to prosecution for the [offense] itself by having affirmatively assisted in committing the offense.”9 For example, when a person assists another to steal firearms, and the other person subsequently uses those firearms to commit a murder, the person may be found to be an accomplice as a matter of fact.10

Ensuring accomplice ­witness cooperation
Oftentimes, an accomplice will not testify for the State against a co-defendant without a plea agreement for his own charges in place. In such a scenario, the prosecutor has several options to ensure the accomplice’s cooperation at trial. Where possible, the prosecutor can enter into an agreement with the accomplice for his truthful testimony at his co-defendant’s trial. In this option, the accomplice enters a plea of guilty to his charges and sentencing is set for some time after the co-defendant’s trial. If the accomplice testifies truthfully at his co-defendant’s trial, the prosecutor negotiates and recommends an agreed sentence.11 This option allows the prosecution to secure a guilty plea and still leave sentencing open dependent upon the accomplice’s cooperation at trial. However, many prosecutors find themselves unable to take advantage of this plea bargaining option because many judges refuse to reset sentencing for an extended period of time, which may be necessary given the co-defendant’s case(s) may take months or even years to come to trial.
    Another option where probation or deferred adjudication is viable is that the accomplice’s truthful testimony at the co-defendant’s trial can be made a condition of his probation. This method can both resolve the case and ensure the accomplice’s cooperation, as he will no doubt be loathe to find his probation revoked for failing to testify truthfully.
    Where probation is either not available or not desirable, the options are somewhat less persuasive but can nonetheless still be effective. For instance, the accomplice can be sentenced to confinement and be required, as a condition of his plea, to give a sworn statement on the record wherein he gives a full account of his trial testimony and also acknowledges that a failure to testify truthfully will result in the plea bargain being voided. This method can ensure both the consistency of the accomplice’s testimony and the State’s ability to void his plea bargain should he fail to testify truthfully.
    Regardless of the method for resolving the accomplice’s case, an accomplice’s sworn statement on the record can be a useful tool in ensuring that he testifies truthfully at his co-defendant’s trial and consistently with his previous in-court statement. “Consistently” is emphasized here because this statement, being under oath and on the record, gives the State an instrument on which to base a perjury charge should the accomplice’s trial testimony deviate from his previous statement. This statement can also be used as impeachment should the accomplice testify inconsistently with his previous statement on the stand or should he refuse to testify as previously agreed.12

Testimony must be corroborated
Even the most junior prosecutors are familiar with the general rule that a defendant’s guilt can be proven by the testimony of a single witness.13 While this is the general rule, a greater degree of proof is required when dealing with accomplice witness testimony because accomplices are presumed to be biased and untrustworthy.14
    The Texas Code of Criminal Procedure mandates that accomplice witness testimony be corroborated before a conviction may be based upon it.15 However, the code requires only that there be “other evidence tending to connect the defendant with the offense committed; and the corroboration is not sufficient if it merely shows the commission of the offense.”16 Keep in mind that this standard requires only some evidence tending to connect a defendant to the crime; it does not require that every word an accomplice says must be corroborated, as defense counsel will often argue.17
    While the corroboration standard is not a demanding one, it does have an additional wrinkle: Accomplices cannot corroborate one another.18 The corroborating evidence must come from some other source, such as testimony that the defendant attempted to procure a false alibi.19 Other examples of corroborating evidence, in a murder case for instance, can include: evidence that the defendant and accomplices were seen with a gun hours before the murder; evidence that the defendant made a plan to meet with the accomplice before the murder; and evidence that the defendant was seen wearing a piece of the victim’s property.20 These are all examples of evidence “tending to connect” the defendant to the crime.21

Discovery issues
A plea bargain with an accomplice, which requires his testimony at trial, is a matter that must be disclosed to the defense.22 Failure to disclose this evidence, which is inherently favorable to the defendant, violates due process.23 Furthermore, the existence of the plea bargain is per se impeachment material and therefore must be made known to the defense for the State to satisfy its duties under Brady.24 A plea bargain with an accomplice must also be disclosed to the jury.25 The jury must know that the accomplice has an interest in testifying against the defendant to protect the defendant’s due process rights.26
    Further, the contents of any statement made by an accomplice, and any transcript thereof, would be required to be disclosed under the revamped discovery statute in Art. 39.14 of the Texas Code of Criminal Procedure.27

Charging issues
When the State relies on accomplice witness testimony, the defense is entitled, even without a request, to a jury charge on accomplice witness testimony where the evidence establishes that the witness is an accomplice.28 That charge should instruct the jury in accordance with Article 38.14 of the Code of Criminal Procedure that the accomplice witness’s testimony must be corroborated.29 Failure to give an instruction on accomplice witness testimony is error.30 While the error in failing to give such an instruction can be found harmless on appeal,31 a prosecutor who argues against such an instruction and then hopes the error will be found harmless on appeal may find himself in for an unpleasant conversation with his appellate division and possibly have his case reversed.
    Furthermore, different jury instructions are necessary for accomplices as a matter of law and accomplices as a matter of fact.32 Where a witness is an accomplice as a matter of law, the jury should be instructed that the witness is an accomplice.33 However, the trial court’s duty to instruct the jury that a witness is an accomplice as a matter of law does not arise unless there is “no doubt” in the record that the witness is an accomplice.34
    Where it is unclear if the witness is an accomplice, the trial court should allow the jury to decide it as a matter of fact, and the jury should be given instructions defining the term “accomplice.”35 Where there is a question of whether a witness is an accomplice as a matter of fact, the jury should also be charged that if it finds that the witness is an accomplice, the jury should then apply the corroboration requirement to that witness’s testimony.36 Remember, there must be some evidence in the record of an affirmative act on the witness’s part to assist in the commission of the charged offense before an instruction on whether the witness is an accomplice as a matter of fact is justified.37
    While accomplice witness testimony carries with it inherent risks, in the right case it can be a useful tool. Prosecutors should therefore approach this issue with caution but not shy away from using accomplice witness testimony when necessary. Please feel free to contact me if I can be of any assistance.

Endnotes

1 Smith v. State, 332 S.W.3d 425, 439 (Tex. Crim. App. 2011).
2 Id.; Druery v. State, 225 S.W.3d 491, 498 (Tex. Crim. App. 2007).
3 Smith, 332 S.W.3d at 439.
4 Id.
5 Id.; Paredes v. State, 129 S.W.3d 530, 536 (Tex. Crim. App. 2004).
6 Paredes, 129 S.W.3d at 536.
7 Id.; Druery, 225 S.W.3d at 498-99.
8 Id. at 499-500.
9 Id. at 500.
10 Ramey v. State, No. AP-75678, 2009 WL 335276 at *9-10 (Tex. Crim. App., Feb. 11, 2009) (not designated for publication).
11 See Castillo v. State, 221 S.W.3d 689, 694-95 (Tex. Crim. App. 2007) (rejecting claim that prosecutor’s offer of leniancy in plea bargaining to accomplices in exchange for truthful testimony violated ethical rules).
12 See Tex. R. Evid. 801(e)(1)(A) (defining as “not hearsay” a statement by a witness which is inconsistent with the declarant’s testimony and was given under oath subject to a penalty of perjury).
13 See Lee v. State, 206 S.W.3d 620, 623 (Tex. Crim. App. 2006) (discussing continuing viability of the “one witness rule” in the context of State’s voir dire).
14 Blake v. State, 971 S.W.2d 451, 463 (Tex. Crim. App. 1998).
15 Tex. Code Crim. Proc. Art. 38.14.
16 Id.
17 Castillo, 221 S.W.3d at 691 (holding that non-accomplice corroborating evidence need not directly link the defendant to the crime, nor must it alone prove the defendant’s guilt beyond a reasonable doubt) (internal citations and quotations omitted); Gribble v. State, 808 S.W.2d 65, 71 n. 13 (Tex. Crim. App. 1990) (accomplice testimony need be corroborated only to the degree that the corroborating evidence tends to connect the defendant to the offense committed, and does not need to prove the corpus delicti of the crime).
18 Chapman v. State, 470 S.W.2d 656, 660 (Tex. Crim. App. 1971); Burks v. State, No. 03-12-00181-CR, 2014 WL 1285731 at *4 (Tex. App.—Austin Mar. 26, 2014 no pet.) (not designated for publication).
19 Brown v. State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008).
20 Castillo, 221 S.W.3d at 693.
21 Tex. Code Crim. Proc. Art. 38.14.
22 See Smith v. State, 541 S.W.2d 831, 834-35 (Tex. Crim. App. 1976) (citing Brady v. Maryland, 373 U.S. 83 (1964).
23 Id.
24 See Carroll v. State, 916 S.W.2d 494, 500-01 (Tex. Crim. App. 1996) (holding that although the witness had no agreement with the State regarding his pending criminal charge, the defendant’s rights to confrontation were violated when the trial court disallowed questioning regarding the witness’ pending criminal charge).
25 Napue v. Illinois, 360 U.S. 264, 270 (1959).
26 Id.
27 See Tex. Code Crim. Proc. Art. 39.14(a) (requiring production of “written or recorded statements of the defendant or a witness. …”) and  Tex. Code Crim. Proc. Art. 39.14(h) (requiring production of “any exculpatory, impeachment, or mitigating document, item, or information in the possession, custody, or control of the State.”
28 Herron v. State, 86 S.W.3d 621, 631 (Tex. Crim. App. 2002).
29 Id. at 631-32.
30 Id. at 631.
31 Id. at 633-34.
32 Zamora v. State, 411 S.W.3d 504, 510 (Tex. Crim. App. 2013).
33 Id.
34 Druery, 225 S.W.3d at 498.
35 Id. at 498-99.
36 Zamora, 411 S.W.3d at 510.
37 Druery, 225 S.W.3d at 499.