From MN Bench Book - Trial Procedures & Practices for Judges
Notice by Prosecutor of Evidence & Identification Procedures
See Rule 7, M. R. Cr. P.
In misdemeanor, gross misdemeanor and felony prosecutions where the defendant has demanded a jury trial, the prosecutor must give notice (oral or written) to the defendant of:
- Search and seizure of eavesdropping type evidence;
- Confessions or admissions of defendant;
- Evidence discovered as a result of confessions or admissions;
- Identification procedures used in identifying the defendant.
- Evidence of additional offenses admissible at trial under exceptions to the exclusions in the rules of evidence.
The purpose of these notices is to allow the defendant to challenge, on constitutional grounds, the admissibility of such evidence outside the hearing of the jury. This rule, requiring a hearing outside of the presence of the jury on the constitutional aspects of the admissibility of evidence is in recognition of the psychological dynamic that a lay person would find it difficult if not impossible to not consider a significant piece of evidence such as a confession when considering the guilt or innocence of a defendant. It assumed that a judge would have no such problem as in court or bench trials the same judge that hears the suppression motion also decides guilt or innocence. Also, the resolution of these issues often result in a disposition of the underlying criminal charges without a trial through a plea or dismissal.
These notices must be given at or before the pretrial conference, if one is held, or if one is not held, at least seven (7) days prior to jury trial, M. R. Cr. P. 7.01, 7.02.
If the prosecutor fails to give such notices the evidence or proof of other crimes would not be admissible in a subsequent trial. State ex rel Rasmussen v. Tahash, 272 Minn. 539, 141 N.W.2d 3 (1965), State v. Billstrom, 276 Minn. 174, 149 N.W.2d 281 (1967). If notice were given, the defendant may demand a hearing prior to the commencement of the trial and outside the hearing of the jury on the admissibility of the search and seizure, confession and identification type evidence or proof of other crimes. If the notice is of other crimes, admissible under exceptions to the exclusions in the rules of evidence, the state must establish in the hearing:
- The exception to the general exclusion rule of evidence under which it is admissible;
- The relationship in time, location, or modus operandi between the crime charged and the other offenses if the other crimes evidence is offered for the purposes of identity;
- That direct and circumstantial evidence of the defendant's identity is otherwise weak or inadequate and that it necessarily supports the state's burden of proof;
- That the evidence of the defendant's participation in other crimes is clear and convincing. See supra State v. Billstrom.
If the defendant fails to request a hearing on the search and seizure, confession or identification evidence, he or she cannot object to admission of such, on constitutional grounds, at trial. Rasmussen, supra. If the defendant does not demand a hearing on the proof of other crimes, evidence of such may be admitted at the trial over the defendant’s objection. However, it still must meet the above criteria.
In misdemeanor prosecutions the above notices are usually given at the arraignment through the use of a standard form. In gross misdemeanor cases these notices are given at the defendant's first appearance. Upon receipt of such notice, defense attorneys should always demand the appropriate hearing in order to preserve the defendant's rights to challenge the admissibility of such evidence outside the hearing of the jury. In public defender misdemeanor cases in Hennepin County, because of the volume of cases, the public defender and the city attorney have an ongoing agreement that the city attorney need not give notice of search and seizure, confession, or identification evidence and that absent such formal notice, both sides are entitled to a hearing on the admissibility of such evidence. Formal notice of intent to offer proof of other crimes must be given to public defender clients. In gross misdemeanor cases, formal written Rule 7 and 9 notices are given by the prosecution to the defendant.
A defendant could demand a hearing on the admissibility of search and seizure, confession, or identification type evidence but agree to have it be held as part of the trial in the presence of the jury. If a hearing were held in this manner and the defendant were to have such evidence suppressed, the prosecutor could not appeal that suppression ruling as he or she could if the hearing were held prior to the commencement of the trial.
See Minn. R. Crim. Pr. 7 and 9 for additional disclosure requirements in gross misdemeanor cases.
Challenges to Jurisdiction of the Court over the Defendant
Motions challenging the jurisdiction of the court over the defendant on grounds such as: lack of personal jurisdiction, insufficient facts in the complaint to support a finding of probable cause to believe the defendant committed the alleged violation, or unconstitutionality of the statute or ordinance with which the defendant is charged can only be made after a written complaint is filed and a not guilty plea entered.
If there are no factual disputes and the law can readily be ascertained, the motion may be heard summarily at the arraignment. If it is not heard summarily, notice of the motion must be given within seven (7) days of the arraignment. M. R. Cr. P. 10.02, 10.03 and 10.0
In Misdemeanor Cases
In misdemeanor and petty misdemeanor prosecutions, discovery is limited to the defendant's right to inspect police investigatory reports. This is broadly construed by most prosecutors to include everything in their file or the police file pertaining to the factual investigation of the criminal charge. If additional discovery is necessary, it can be done through motion to the court. M. R. Cr. P. 7.03.
In Gross Misdemeanor Cases
See Minn. R. Crim. P. 9.01 and 9.02 for the discovery required and permitted in gross misdemeanor cases.
Pre-Trial Conferences & Preliminary Hearings in Cases Scheduled for Jury Trials
When a defendant pleads not guilty and demands a jury trial, he or she is first given a date and time for pretrial conference (preliminary hearing in Hennepin County). If the charges cannot be resolved at this conference, or hearing, the defendant is then given a date and time for a jury trial. The defendant can waive his or her right to a pretrial conference and demand a direct setting of a jury trial date. This is rarely done unless the defendant is in custody.
Because jury trials take a great deal of time (at least an entire day and often several) and because, on a pragmatic basis, most criminal charges are resolved short of trial, the rules have formalized the opportunity to get the defendant and the prosecutor together for settlement discussions at this pretrial conference. While other matters can be resolved at such conferences, for example, rulings on evidence, designation of witnesses, and amendment of charges or complaints, the main thrust of pretrial conferences is to facilitate a resolution of the pending charges short of trial. In Hennepin County these conferences are designated preliminary hearings so as to avoid some of the formal requirements of the rules governing pretrial conferences. M. R. Cr. P. 12.