TITLE ELEVEN — MISCELLANEOUS RULES
Rule 1102. Witness Cooperation Agreements
Agreement. In a criminal case in which there is a written agreement between the State and a witness in which the State makes a promise to the witness in relation to the charges or the sentence in exchange for the testimony of the witness at trial, the use and admission of the agreement by the State at trial is within the discretion of the trial judge subject to the following guidelines:
On direct examination, the prosecution may properly bring out the fact that the witness has entered into a plea agreement and that the witness generally understands his or her obligations under it.
The agreement itself is admissible. The timing of the admission of the agreement is within the judge’s discretion. The judge may defer admission of the agreement until redirect examination, after the defendant has undertaken to impeach the witness’s credibility by showing that the witness had struck a deal with the prosecution in order to obtain favorable treatment.
References to a witness’s obligation to tell the truth, any certification or acknowledgment by his or her attorney, and any provision that suggests that the State has special knowledge as to the veracity of the witness’s testimony should be redacted from the agreement, on request.
Ordinarily, questions by the prosecutor about the duty of the witness to tell the truth and the reading of the agreement are not permitted until redirect examination and after the witness has been cross-examined on the matter.
Care must be taken by the State not to suggest, by questions or argument, that it has knowledge of the credibility of the witness independent of the evidence.
The trial judge must instruct the jury by focusing their attention on the particular care they should give in evaluating testimony given pursuant to a plea agreement that is contingent on the witness’s telling the truth.
Disclosure of the Agreement. The State shall disclose to the defendant the existence and the terms of any agreement within this rule, and any promise, inducement, benefit, or forbearance extended to the witness, whether or not reduced to writing, as soon as practicable after it is made and in any event before the witness testifies. Disclosure shall be made through the electronic filing system or in the proceeding communications, and within the pre-trial period allowed by Rid. R. Crim. P. 46(1) where the agreement is made within that period. A failure to disclose is subject to Rid. R. Crim. P. 14 and Rid. R. Crim. P. 48.
Unwritten Understandings. Where a promise, inducement, benefit, or forbearance has been extended to a witness but has not been reduced to writing, the defendant may examine the witness and the prosecutor’s representative upon it, and the court may require the State to state its terms upon the record. This rule’s guidelines apply to such an understanding as they apply to a written agreement.
Redaction. The redaction required by Rule 1102(3) is made in the copy of the agreement offered as an exhibit. Where the agreement has been filed through the electronic filing system, the system provides no capacity to redact a document already received; the exhibit offered in evidence shall be a redacted copy, offered as a separate filing or in the proceeding communications, and the court may by order binding the persons who possess the unredacted agreement forbid its display or use before the fact finder.
Bench Trials. A petit jury is available only upon a charge of treason, as 6 R. Stat. §§ 131.111 and 131.306 provide. In every other criminal case the court is the fact finder, and the instruction required by Rule 1102(6) is satisfied by the court’s statement upon the record that it has evaluated the testimony with the particular care that subdivision describes. The court shall make that statement in its findings.
Compelled Testimony Distinguished. An order compelling a witness to testify after a claim of the privilege against self-incrimination, and the immunity which 6 R. Stat. § 131.303 confers upon such testimony in a prosecution for treason, espionage, sabotage, or conspiracy against the State, are governed by Rule 505 and Rid. R. Crim. P. 17.1. Where a witness testifies under such an order, the fact and terms of the order are admissible upon the witness’s credibility to the same extent as an agreement within this rule.
Cross-Examination. Nothing in this rule limits the defendant’s right to cross-examine the witness upon the agreement, upon the charges and sentence which the witness faced and now faces, upon the witness’s understanding of what the State expects, and upon the witness’s motive to testify favourably to the State. That right is secured by Const. art. I, § 6.