S. Ct. Crim. No. 2011-0053

In a prosecution for first degree murder and other offenses, the Superior Court committed reversible error when it permitted the People to use a statement obtained in violation of the defendant's constitutional right to counsel, and which was suppressed before trial, as substantive evidence against him at trial. It is black letter law that a statement obtained in violation of a defendant's right to counsel, and subsequently suppressed, may not be used as substantive evidence and instead can only be used, if at all, to challenge the credibility of the witness. The People have not shown that the error was harmless in this case, which involved conflicting evidence. The convictions are reversed and the case is remanded for a new trial. In giving instructions on weighing the credibility of witnesses, unless there is a compelling reason to omit it, the better practice to give an instruction advising the jury that they should consider “with great care and caution” the testimony of accomplices, immunized witnesses and witnesses cooperating with the government in return for some benefit. Upon retrial, the court should reconsider its decision not to give the “great care and caution” instruction if such instruction is requested. The present record is not sufficiently developed to allow a determination whether the trial judge should have recused himself pursuant to 4 V.I.C. § 284, and consequently it cannot be found that the trial judge's failure to recuse himself sua sponte constituted “plain error.”