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


From MN Bench Book - Trial Procedures & Practices for Judges

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.


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]


(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


The attorneys should be familiar with the Minnesota Supreme Court Jury Task Force “Final Report” issued on December 20, 2001 including Appendix E of that report, “Voir Dire: A Trial Judge’s View,” Hon. Gordon Shumaker, (1977)

A) Jury Selection Procedures:
1. Method of selection; number of jurors and alternates; selection of alternates
a. Alternate is generally the last juror selected
b. Option – when you excuse the alternate (in long or complex trials) consider keeping the alternate available, in case you lose a juror during deliberations.
2. Number of preemptory strikes (State gets 3; Defense gets 5)
NOTE: MULTIPLE DEFENDANTS: (rule 26.02, subd 6) they get a total of 5 unless the court increases that number and then allows defendants to exercise them separately or jointly, which has the net result of reducing the number of peremptories per defendant but increases the number available to the prosecution (if you increase the total defense number you must also increase the prosecution number).
3. Challenge for cause procedure
4. Batson Challenge (defense challenges state peremptory):
a. First, defendant must make a prima facie showing that State exercised peremptory on the basis of race
b. Then, the burden shifts to State to articulate a race-neutral explanation
c. Then, Court must determine whether defendant met burden of proving intentional discrimination
5. Batson (McCollum) Challenge (state challenges defense peremptory):
a. State v. Reiners case, 644 N.W.2d 118
b. First, state must make prima facie showing
c. Then, the burden shifts to the defense to articulate a race-neutral reason. Reason need not be persuasive, or even plausible.
d. Then, court must determine whether opponent of strike has proven purposeful racial discrimination
6. Use of Jury Questionnaire?
7. Preliminary and designated questions by the court
a. Put thumbnail questions on white board
b. Time limits?

B) Purpose:
1. To discover the bases for challenge for cause.
2. To gain knowledge to facilitate an informed exercise of peremptory challenges.[21]
a. Standard: Impartiality
i. The right juror is both willing and able to be neutral, open-minded, and fair.
ii. The test of an impartial juror is not that s/he shall be completely ignorant of the facts and the issues, but that s/he can lay aside his/her impressions or opinions and render a verdict based on the evidence presented in court.[22]
iii. The Court has the right and the duty to ensure that voir dire inquiries are reasonable. The Court may restrict or prohibit questions that are repetitious, irrelevant, or otherwise improper.[23]
iv. It is the duty of each juror to follow the instructions of the court, and hence their knowledge or ignorance concerning questions of law is not a proper subject for voir dire.[24]
b. Basic approach:
i. Attorneys are entitled to receive information from potential jurors through questions designed to achieve the proper purposes of voir dire. Attorneys are not entitled to give information about the facts or the law in the case.
ii. Attorneys are permitted to seek out cause, bias, or partiality concerning any potential juror.
c. Scope of Proper Voir Dire:
Attorneys may ask only questions which directly and clearly relate to the purposes of voir dire, as stated above. They may not ask any of the following types or categories of questions:
1. Those designed to examine jurors as to their understanding of the law, such as,
  • Standards of Proof: Preponderance, Clear and Convincing, Reasonable Doubt.
  • Comparative Fault and its effects.
  • Presumption of Innocence or Exercise of Reasonable Care.
2. Those designed primarily to educate or indoctrinate jurors as to theories, facts, strategies or problems in the case.[25]
3. Those intended to predispose jurors to be in favor of or against a party, a witness or some aspect of the case, such as,
  • Are you in favor of strict and strong enforcement of all criminal laws?
4. Those which ask jurors to put themselves in the place of the Defendant, such as,
  • If you were the Defendant, would you want a person such as yourself on the jury?
5. Those which are merely arguments of the case.
6. Those which are hypothetical in nature.
7. Those asking jurors about whether they have been falsely accused, such as,
  • Do you think it is possible for anyone in to be arrested and charged for a crime or accused of wrongdoing for which the defendant is innocent or not liable?
  • Have you ever been blamed in your life for something you did not do?[26]
8. Those which ask the jurors to commit themselves to vote in a certain way or to take any position whatsoever before they hear the evidence.
9. Those which comment on possible punishment or adverse effects if Def convicted.[27]
10. Those which attempt to present evidence.
11. Those which inquire, offer evidence or comment upon the constitutionality of:
  • Searches conducted in the case;
  • The manner in which statements were taken from the Defendant in the case;
  • The arrest of the Defendant in the case.[28]
12. Those which repeat questions previously asked by the judge and those to which clear and complete answers have been given.
13. Those which ask jurors to speculate as to what their reactions might be to certain evidence or how certain evidence may effect their decision.
14. Those asking jurors how certain evidence may influence their verdict.[29]
15. Any questions regarding settlement efforts.[30]
16. Those that suggest the jury should return a large verdict.[31]
17. Those meant to solicit promises from the panel based on hypothetical facts.[32]
18. Those attempting to establish rapport with the jury panel.[33]
19. Any question which violates a juror’s equal protection rights, such as:
20. Any question designed to violate the privacy of the jury panel.


a) Trial schedule:
  • Start at 9:00am; lunch noon to 1:30; end at 4:30 or 5:00;
  • one mid-morning and one mid-afternoon break (15 to 20 minutes).
  • Motions and hearings outside presence of jurors at 8:30, 1:00pm or 4:30pm.
b) Standing and Sitting:
  • Stand when the jury enters and leaves (and when sworn); Sit for questioning and objections.
c) Opening Statements:
  • Defense opening statement – give after State’s opening or reserve until after State rests?
  • Obtain prior Court approval of any exhibits to be used.
  • State the facts to be proved; Do not argue.
  • “No Entry” signs on front doors during opening and closing – any objection?
d) Objections:
  • Do not use speaking objections.
  • State the objection, the legal basis for it and wait for a ruling.
  • No further argument unless requested by the Court.
  • Foundation objection – be prepared to state (if asked) where foundation is lacking
e) Questioning witnesses:
  • Do not testify (but leading questions for preliminary or non-contested facts permissible)
  • Do not instruct the witnesses how to answer the question.
  • Do not editorialize or repeat the answers.
  • Do not use 1st names of witnesses.
f) Approaching Witnesses:
  • One request to approach your own witness is sufficient. If witness is hostile ask each time.
  • Do not loiter by witness.
g) Closing Arguments:
  • Be professional.
  • “No Entry” signs on front doors during opening and closing (lock doors?) – any objection?
  • Remember, the capacity of the mind is limited by the seat’s ability to endure.
h) Bench and chamber conferences will be kept to a minimum.
  • Bench conferences only if necessary (use of white noise); all bench conferences will be recorded  ::* Anticipate and raise potential problems ahead of time (see motions in limine section)
i) Use of E-Courtroom Technology:
  • Be familiar with and use the e-courtroom’s built in electronic evidence display system.
DECORUM. The Court will require full compliance with the General Rules of Practice for the District Courts. See Title I, Rule 2. Court Decorum, Conduct of Judges and Lawyers, and Title II, Part H. Minnesota Civil Trial Notebook.


  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).
  21. Minn. R. Crim. P. 26.02, Subd. 4(1) and Subd. 5; Minn. Stat. § 546.10; Gen. R. Prac. 808, 809; State v. Mulroy, 189 N.W. 441 (Minn. 1922).
  22. See State v. Andrews, 282 Minn. 386, 165 N.W.2d 528, 534 (Minn. 1969).
  23. Minn. R. Crim. P. 26.02, Subd. 4(1); Minn. R. Civ. P. 42.01.
  24. See State v. Evans, 352 N.W.2d 824, 826 (Minn. Ct. App. 1984).
  25. People v. Shipman, 747 P.2d 1 (Colo. Ct. App. 1987); Jacobs v. State, 358 A.2d 725 (Del. 1976); State v. Fredericksen, 40 Wash. App. 749, 700 P.2d 369 (Wash. Ct. App. 1985).
  26. See State v. Owens, 373 N.W.2d 313, 315 (Minn. 1985).
  27. See State v. Finley, 214 Minn. 228, 231-2, 8 N.W.2d 217, 218 (Minn. 1943).
  28. These matters are questions of law and not issues for the jury to consider as fact finders. See State v. Wajda, 296 Minn. 29, 6 N.W.2d 1 (Minn. 1973).
  29. See State v. Bauer, 189 Minn. 280, 249 N.W. 40 (1933); State v. Evans at 826.
  30. Tellefson v. Key System Transit Lines, 322 P.2d 469, (Cal. Ct. App. 1958).
  31. Goldstein v. Fendelman, 366 S.W.2d 661 (Mo. 1960).
  32. Trautman v. New Rockford-Fessenden, 181 N.W.2d 754 (N.D. 1970).
  33. Oliver v. State, 739 S.W.2d 656 (Tex. Ct. App. 1987).
  34. 14th Amt. U.S. Const. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).
  35. 14th Amt. U.S. Const. J. E. B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).
  36. State v. Everett, 472 N.W.2d 864 (Minn. 1991).
  37. State v. Davis, 504 N.W.2d 767 (Minn. 1993).