Can the guilty plea allocution of a corporation be admitted against an individual defendant in a criminal trial to prove the existence of a conspiracy? A recent evidentiary ruling in the Southern District of New York suggests it can, provided that “signatories” to the corporate plea agreement are available for cross-examination. This column will review the history of the admission of individual co-conspirator plea allocutions in criminal cases and discuss why the admission of a corporate guilty plea, despite the opportunity to cross-examine a corporate employee who signed the plea agreement, does not provide the type of cross-examination guaranteed by the Confrontation Clause. As a result, the Confrontation Clause should operate as a per se bar on the admission of corporate plea allocutions in the trials of individual defendants.

Second Circuit Confrontation Clause Jurisprudence

The Confrontation Clause of the Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause protects the right of cross-examination and “ensure[s] the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Lilly v. Virginia, 527 U.S. 116, 123-24 (1999) (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)). Indeed, the U.S. Supreme Court has agreed that “‘[c]ross-examination is the greatest legal engine ever invented for the discovery of truth.’” California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 J. Wigmore, Evidence §1367 (3d ed. 1940)).

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