Pleas of Co-Defendants: Admissability and Harmless Error in New Mexico

The 6th Amendment allows for confrontation of witnesses in criminal trial of the U.S. Constitution guarantees the right of a criminal defendant to confront witnesses. As such, testimonial evidence is inadmissible in court against a defendant unless the defendant has a chance to cross-examine the witness who‘s statements are admitted into evidence.

In State of New Mexico v. Tollardo, the issue came up in the context of the state attempting to admit into evidence the guilty plea of a co-defendant.

The facts of State v. Tollardo involved a murder in which Defendant allegedly took part. During the Defendant‘s trial, the prosecutor asked a police witness whether he knew if certain co-defendants had been convicted for the Victim‘s death. Neither co-defendant was present or a witness at Defendant‘s trial.

Even though the police witness was not allowed to answer the question in the presence of the jury, the court took judicial notice of the co-defendants‘ pleas and informed the jury of them after the State rested its case. The jury subsequently convicted the Defendant. The Defendant appealed his conviction arguing that the introduction of the co-conspirator convictions violated his right to confront witnesses against him under the Sixth Amendment.

The Confrontation Clause applies to witnesses against a criminal defendant who “bear testimony.” Since pleas must be made in open court before a judge where the judge ascertains whether the defendant understands the meaning and consequences of the plea, the Court held that pleas of this kind are testimonial. As testimonial evidence, pleas and convictions of co-conspirators are inadmissible in court against a defendant to prove facts of the case unless the defendant has a chance to cross-examine the co-defendant about the plea or conviction in court.

On the other hand, if the co-defendant is available for cross examination, the co-defendant may be questioned about the plea to determine the co-defendant‘s credibility and possible reasons for pleading guilty. In fact, there are many reasons for taking a plea other than guilt and this is something a jury is entitled to hear.

This brought the court to a the issue of harmless error. Once a Defendant has proven a violation of the Confrontation Clause, the prosecution must prove that the error was harmless. If the prosecution cannot prove that the error was harmless, the proper remedy is a new trial. Before this case, New Mexico used a three-part test announced in the 1980 case State v. Moore to analyze whether an error was harmless. In its current opinion, however, the Court overruled the Moore test and all of the cases that applied Moore to resolve harmless error questions on the basis that the Moore test misapplied the law.

In its place, the Court held that when reviewing a harmless error question, courts should only consider an error harmless when there is no reasonable possibility that the error affected the verdict for constitutional errors, and when there is no reasonable probability that the error affected the verdict for non-constitutional errors. The Court explained the different standards for constitutional and non-constitutional errors arguing that the burden of proof should be higher when it involves a constitutional right.

The Court enumerated some factors that courts should consider when evaluating whether there was a reasonable possibility or probability that the error affected the verdict. However, the Court refused to set out a new test and instead encouraged courts to examine every case individually and make an educated judgment call as to whether the error influenced the verdict.

First off, the Court stated that a judge should weigh all of the circumstances relating to the error, including an examination of the error itself, its source, and the emphasis placed on it during trial. Courts should also look at how important the error was to the prosecution‘s argument, whether it bolstered facts already introduced through other evidence, or whether it presented new facts.

While this seems beneficial to defendants in that it eliminates the rigid Moore test, the real effects of this opinion remain to be seen. In any event, is it definitely a step in the right direction.


Additional Reading on the Right to Confrontation of Witnesses:
Prosecution Medical Experts and the Confrontation Clause in New Mexico
In An Increasingly Technical Age, There Is Still No Substitute for Face-to-face Confrontation of Witnesses
6th Amendment Confrontation Rights Take a Blow in the 10th Circuit

Collins & Collins, P.C.
Albuquerque Attorneys

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