In Smalls v. South Carolina, the SC Supreme Court reversed a defendant’s conviction for murder based on ineffective assistance of counsel by his criminal defense lawyer at trial.
The basis for the reversal was:
- The defendant’s attorney failed to cross-examine a state’s witness on the fact that they had dismissed the witness’ carjacking charges the morning of trial;
- The attorney failed to object when another state’s witness testified that the defendant had committed an uncharged burglary that would not have been admissible; and
- The attorney failed to object to false statements made by the prosecutor in opening statement.
The Supreme Court held that the mistakes that the lawyer made were: 1) ineffective assistance of counsel; and 2) they prejudiced his defense and were not “harmless error” under the circumstances.
What did the attorney do wrong?
Cross-Examining the Snitch in SC
Every SC criminal defense lawyer should know how to cross-examine a state’s witness who has pending charges.
Prosecutors will often attempt to avoid cross-examination of their witness by preparing the witness to testify that they have not been given any deals in exchange for their testimony and that they have nothing to gain – a lie that they will get away with if the defense attorney is not vigilant or does not know the rules.
What are the rules?
The general rule is that “On cross-examination, any fact may be elicited which tends to show interest, bias, or partiality of the witness.”
In a series of appellate opinions, the U.S. Supreme Court and the S.C. Supreme Court have confirmed that any pending charges, dismissed charges, or any other benefit that a witness could get from their testimony is cross-examination material. For example:
- The potential sentence that a cooperating witness faces, even if it is the same as the defendant’s potential sentence which would not otherwise be admissible. State v. Pradubsri and State v. Mizzell, 349 S.C. 326, 563 S.E.2d 315 (2002);
- The potential sentence a cooperating witness would have faced, although the state has now reduced their charges. State v. Brown, 303 S.C. 169, 399 S.E.2d 593, (1991);
- Pending charges even though they are not related to the defendant’s case. State v. Elijah Smith, 315 S.C. 547, 446 S.E.2d 411 (S.C. 1994);
- The witness’ prior plea-bargaining with the prosecutor’s office to show that the witness knows how it’s done, even though there are no current pending charges. State v. Jeffrey Jones, 343 S.C. 562, 541 S.E.2d 813 (S.C. 2001);
- What the witness’ pending charges are – it’s not enough to just ask if there are pending charges, but the defendant’s attorney is allowed to get into the specifics of what the charges are and any potential penalties. State v. Sims, 348 S.C. 16, 558 S.E.2d 518 (S.C. 2002); and
- Any mandatory minimum sentences the witness faces, even if it is the same as the mandatory minimum sentences that the defendant faces. State v. Gracely, 399 S.C. 363, 731 S.E.2d 880 (2012).
SC Murder Defense Lawyers in Columbia, Charleston, Myrtle Beach, and Conway
If you have been charged with murder, attempted murder, kidnapping, or any violent crime in South Carolina, your attorney will need to be prepared to do a thorough independent investigation and try your case to a jury if it is not dismissed – and they will need to be prepared to cross-examine the inevitable state’s witnesses who are trading their testimony for help on their own charges.