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BEFORE TRIAL - MN Bench Book - Trial Procedures & Practices for Judges
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BEFORE TRIAL

From MN Bench Book - Trial Procedures & Practices for Judges

Revision as of 16:06, 11 August 2011 by Chelsea Becker (talk | contribs) (2. MOTIONS IN LIMINE AND OTHER TRIAL EVIDENTIARY ISSUES:)

NOTE: Attorneys for both sides should be prepared to discuss the following in chambers before trial. All chambers discussions will be placed on the record outside the hearing of the jury, but in the presence of the defendant, in appropriate cases. The court will distribute copies of the following to attorneys for both sides prior to commencement of trial.

1. PROCEDURAL AND ADMINISTRATIVE CHECKLIST:

a) Scheduling – Anticipated length of trial
b) Witness lists (court needs master list to read to jury)
c) Sequestration (witness and jury):
i) Make record of defendants request to sequester witnesses and/or jurors
(1) Judge specifically instruct each witness not to discuss their testimony with potential witnesses who have not yet been called. [1] There must be an indication in the record that statements made in violation of a sequestration order were made in an attempt to influence the testimony of other witnesses, or that the statements did influence the testimony of other witnesses, before the trial court need even consider it as grounds for a new trial. Prejudice resulting from violation of a sequestration order must be shown. [2]
ii) Case agent exception – MRE 615
d) Jury Instructions and Special Verdict Forms – preliminary discussions:
i) CrimJig 1.01 add or delete “or because defendant has been arrested”
ii) Include elements of offense(s) in preliminary instructions?
iii) Copy of courts preliminary instructions displayed to jury on display monitors
iv) Anticipated lesser included instructions?
v) Anticipated cautionary instructions?
e) Charges and Arraignment:
i) Confirm charges – any amendments? (court will read charging clause to jury)
ii) Confirm defendant previously arraigned and plead “not guilty”
f) Stipulations and/or Admissions:
i) Testimonial, evidentiary, foundation?
g) Jeopardy attaches once jury is sworn:
i) Trial will go forward even if defendant is late or fails to appear
h) Defendant’s right not to testify – preliminary discussion
i) CrimJig 3.17, make a clear record of defendant’s decision
i) Discovery Issues:
i) Both parties in compliance and nothing pending
j) Affirmative Defenses:
i) Is the defendant raising any defense other than not guilty: (i.e. alibi, self defense, mental illness, etc); make a clear record especially in misdemeanor cases since RCP rule 9 only applies to gross misdemeanor and felony cases).
k) Security and Custody Issues (if defendant is in custody):
i) Defendant’s court clothing
ii) Use of Security Restraints on defendant, make findings after open court hearing.
(1) Don’t order unless eminently necessary; only those restraints which are reasonable and least coercive. See State v. Stewart, [3] for a list of 11 factors to consider. Do not order restraints unless court finds such restraint reasonably necessary to maintain order or security.[4]
(2) Cautionary Instruction – R. Crim. P. 26.03, subd. 2c.
iii) Use of metal detector, wand, etc.?
l) Use of weapons during trial:
i) Review courts written policy on “handling weapons as exhibits”
ii) Must notify bailiff before bringing weapon into courtroom
m) Witness Incrimination Issues:
i) Need for 5th amendment advisory?
n) Opening Statement
i) Will defense attorney give it after the state or reserve it
ii) Consideration: signs not to enter during opening and closing – any objection?
o) Exhibits:
i) Premark exhibits (State 1 to ______; Defense _______ to ________)
ii) Have attorneys provide exhibit lists to court and opposing counsel
iii) Have all exhibits been examined by opposing counsel?
iv) Stipulations on foundation?
(a) Foundation objection – be prepared to state where foundation is lacking
v) Requests to voir dire witness to lay foundation for objection
vi) Use of technology during trial
vii) Location of exhibits during trial and after admission (offer, receive, give to court)
p) Competency of Child Witnesses:
i) Examination may be in chambers; must be on the record; def may be excluded; make a clear record. [5]

Sample Competency Questions:

1. Name, How old are you
2. When is your birthday; What do you remember about it
3. Do you go to school; what school; what grade; teachers name; favorite class,
4. Can you read; What do you read
5. Do you watch TV; What type of shows do you watch
6. Watch TV shows with Judges and lawyers; know what judges and lawyers do,
7. Ever see people in those shows raise their hands and promise to tell the truth
8. Know what it means to tell the truth; Explain (e.g. I am a boy/girl – truth or lie)
9. Know what it means to tell a lie; Explain (e.g. You are a boy/girl – truth or lie)
10. Have you ever told a lie before; Did you get into trouble
11. What happens if you tell a lie at home, at school; to policeman; in court
12. Do you think it is ever ok to lie
13. Purpose of oath to tell the truth
14. If I ask you to tell the truth will you do that
15. With your promise to tell the truth, that means not to hide anything
16. You have to tell everything you remember when asked a question; Understand.
17. NOTE: make a record of the child’s conduct, not just what is said.
q) Anticipated Request to Close any Portion of Trial From Public Viewing?
i) Exclusion of the public from hearings conducted outside the presence of the jury is governed by Minn. R. Crim. Proc. 26.03, subd. 6
ii) Exclusion of the public, or certain people, from the courtroom during trial may be permitted in limited circumstances.
(a) The party seeking closure must identify an overriding interest likely to be prejudiced absent closure (e.g. witness intimidation)
(b) The closure must be no broader than necessary to protect that interest
(c) Reasonable alternatives to closure must be considered by the trial court
(d) The trial court must make findings adequate to support the closure

because closure implicates federal and state constitutional rights to a public trial, closure will be reviewed de novo and error may result in reversal.[6]


2. MOTIONS IN LIMINE AND OTHER TRIAL EVIDENTIARY ISSUES:

(a) PRIOR CONVICTIONS: (Rule 609) (prove by other than certified copies of court records).[7] 5 factor analysis:
i. impeachment value of the prior conviction;
ii. date of conviction and defendant’s subsequent history;
iii. similarity of prior conviction with the charged crime;
iv. the importance of the defendant’s testimony; and
v. the centrality of the credibility issue.


(b) SPREIGL EVIDENCE: or other crimes/bad acts[8]
Spreigl Evidence: This is another term for evidence referred to in Minn. R. Evid. 404(b):
Evidence of another crime, wrong, or act is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
The court has developed, through the many cases since Spreigl, a five-step process to determine whether to admit other-acts evidence. The steps are:
1) The state must give notice of its intent to admit the evidence;
(a) The notice requirement has been incorporated into Minn. R.Crim. P. 7.02
2) The state must clearly indicate what the evidence will be offered to prove;
(a) State must clearly indicate what evidence will be offered
3) There must be clear and convincing evidence that the defendant participated in the prior act;
(a) A defendant’s participating in a Spreigl incident may be considered clear and convincing when it is highly probable that the facts sought to be admitted are truthful.[9]
4) The evidence must be relevant and material to the state’s case;
(a) District Court must identify the precise disputed fact to which Spreigl evidence would be relevant. Angus v. State, 695 N.W.2d 109, 120. This entails isolating the consequential fact for which the evidence is offered, and then determining the relationship of the offered evidence to that fact, and the relationship of the consequential fact to the disputed issues in the case.
Also important: The District Court should not simply take the prosecution’s stated purposes for the admission of other-acts evidence at face value. Instead, the court “should follow the clear wording of Rule 404(b) and look to the real purpose for which the evidence is offered,” and ensure that the purpose is one of the permitted exceptions to the rule’s general exclusion of other-acts evidence.[10] Only after such an examination is completed should the court balance the probative value of the evidence against its potential to be unfairly prejudicial.[11]
Possible purposes for “other-acts” evidence and case law guidance
1. Motive
Rule: Motive concerns external facts that create a desire in someone to do something, whereas intent is a state of mind in which an act is done consciously, with purpose.[12] Often times the state will conflate the issue of motive, which is not an element of the crime, with intent, which clearly is an element.
2. Intent
Rule: Other-acts evidence may help to prove the element of intent,[13] but the admission of such evidence under this exception requires an analysis of the kind of intent required and the extent to which it is a disputed issue in the case.
3. Common scheme or plan
Rule: In determining whether a bad act is admissible under the common scheme or plan exception, it must have a marked similarity in modus operandi to the charged offense.[14]
4. Questions about remoteness of prior bad act
Rule: [A] district court, when confronted with an arguably stale Spreigl incident, should employ a balancing process as to time, place, and modus operandi: the more distant the Spreigl act is in terms of time, the greater the similarities as to place and modus operandi must be to retain relevance.[15]



5) The probative value of the evidence must not be outweighed by its potential prejudice to the defendant
(a) The prosecution’s need for other-acts evidence should be addressed in balancing probative value against potential prejudice, not as an independent necessity requirement, which has become a shibboleth. Henceforth, courts should address the need for Spreigl evidence in the context of balancing the probative value of the evidence against its potential for unfair prejudice. [16]
    • There used to be an independent “necessity” requirement for the admission of Spreigl evidence, focusing on the relative strength of the state’s case. The Ness court eliminated this as a separate requirement and instead requires courts to address the state’s need in the overall balancing test.
Also: If the admission of evidence of other crimes or misconduct is a close call, it should be excluded.[17]


(c) HEARSAY: (Rule 803 & 804) and Authentication issues (Rule 901 & 902 issues):
(1) Admissibility of out of court statements under Crawford v. Washington.[18]
(a) Rule: When a witness is unavailable, testimonial statements made by the witness are inadmissible at the defendant’s trial unless the defendant had an opportunity to cross-examine the witness. The rule “applies to any witness against the accused. The rule applies even if a hearsay exception applies.
(b) The determination of whether a statement violates the Confrontation Clause is dependent upon whether that statement is testimonial.
(i) Testimonial Statement = “a solemn declaration or affirmation made for the purpose of establishing or proving some fact”.
(ii) Test--8 factors set out in State v. Wright[19]
1. Was the declarant a victim or an observer/witness?
a. Victims are less likely to make “testimonial” statements.
2. What was the declarant’s purpose in speaking with the officer?
a. Statements to obtain help/protection/safety/assistance are less likely to be testimonial.
3. Was it the police or the declarant who initiated the conversation?
a. Declarant initiated = less testimonial
4. Where was the statement made?
a. Declarant’s home, squad car, police station?
b. Declarant’s home = less testimonial
5. What was the declarant’s emotional state?
a. Emotionally distraught = less testimonial
6. How formal/structured was the conversation?
a. The less structure = less testimonial
7. What was the officer’s purpose in speaking with the declarant?
a. To secure the scene, to protect someone, to collect evidence, to sort out a confusing situation? The more it is to set up a prosecution, the more likely to be testimonial; and
8. If and how the statements were recorded.
a. Formal taping = more testimonial.
b. Officer’s memory (or notepad) = less testimonial

Note: the central considerations are “the purpose of the statements from the perspective of the declarant and from the perspective of the government questioner, in other words, “whether either a declarant or government questioner is acting, to a substantial degree, in order to produce a statement for trial. The other six factors are probative of those two.[20]

(d) Character evidence (Rule 404 to 407 & 608)
(e) Experts (Rule 7.02)
(f) Lay witness opinions (Rule 7.01)
(g) Rule 403, overly prejudicial analysis



<references>
  1. State v. Johnson, 324 N.W.2d 199, 201 (Minn. 1982)
  2. State v. Bergland, 202 N.W.2d 223 (1972)
  3. State v Stewart .S276 N.W.2d 51 (Minn. 1979)
  4. State v. Lehman, 511 N.W.2d 1 (Minn. 1994) Judges Bench Book 1102.05.
  5. Kentucky v. Stincer, 482 U.S. 730 (1987); Moll v. State, 351 N.W.2d 639 (Minn. Ct. App. 1984); MS 595.02, subd 4
  6. State v. Mahkuk, 736 N.W.2d 275 (Minn. August 9, 2007); Waller v. Georgia, 467 U.S. 39, 104 S.Ct. 2210, 81 L.Ed.2d. 31 (1984).
  7. See State v. Griffen, 336 N.W.2d 519 (Minn. 1983); Bench Book #1512.06; need for cautionary instruction; State v. Bissell, 368 N.W.2d 281 (Minn. 1985); State v. Jones, 271 N.W.2d 534 (Minn. 1978).
  8. (Rule 404b & 7.01); Judges Bench Book 1401.03; State v. Ness, 707 N.W.2d 676, 685-86 (Minn. 2006). Note: prior acts of domestic abuse, see MS 634.20.
  9. State v. Kennedy, 585 N.W.2d 385 at 389 (Minn. 1998).
  10. State v. Frisinger, 484 N.W.2d 27, 32 (Minn. 1992).
  11. State v. Ness, at 686.
  12. Minn Stat. § 609.02, subd. 9(3)(2004)(defining criminal intent).
  13. State v. Hennuksela, 452 N.W.2d 668, 679 (Minn. 1990)
  14. State v. Ness, at 668.
  15. State v. Washington, 693 N.W.2d, 195, 201 (2005).
  16. State v. Ness, at 690.
  17. State v. Ness, at 686.
  18. 546 US 36, 124 S. Ct. 1354, 72 USLW 4229 (2004).
  19. 701N.W.2d 802 (Minn. 2005).
  20. Wright at 250, 252; State v Scacchetti, 711 N.W.2d 508 (Minn. 2006).