JUDICIAL ROLE IN WITNESS EXAMINATION
From MN Bench Book - Trial Procedures & Practices for Judges
Judges need to be alert and mindful of errors that creep in when witnesses are being examined or cross examined by the defendant or the State. Sometimes these errors are relatively harmless, but others can lead to mistrial. The following are a few issues to be aware of.
A. Neither side can comment on failure to call a witness available to both sides.
B. The right to reopen and re-examine witnesses or call new witnesses after the State rests generally vests with the discretion of the trial court. However, it should not be granted if reopening would work an unfair surprise on the adverse party.
C. The State must have a good faith basis for cross-examination.
- We’ve made it clear that the state will not be permitted to deprive a defendant of a fair trial by means of insinuations and innuendoes which plant in the minds of the jury a prejudicial belief in the existence of evidence which is otherwise inadmissible. [citations omitted] Use of such insinuation and innuendo is reversible error whether the allusion to prior misconduct is contained in the question which the prosecutor asks or in the answer which the witness gives. Here the prosecutor’s single-minded determination to bring in a guilty verdict succeeded, but at the cost of undermining the value of the trial as a truth determining process.
D. Cross-examination is limited to scope of direct examination.
E. Inadvertent statements by witnesses not reversible error unless prejudicial.
F. Impeachment can often be a critical element of witness examination. Here are two important rules:
The decision of whether to allow evidence of the witnesse's prior conviction of a crime not involving truthfulness or dishonesty but with a sentence of more than a year should be evaluated according to the following factors:
- (a) the impeachment value of prior conviction;
- (b) the date of the conviction and the defendant’s subsequent history;
- (c) the similarity of the prior conviction with the charged crime;
- (d) the importance of the defendant’s testimony; and
- (e) the centrality of the credibility issue.
Crimes of dishonesty regardless of offense level are admissible without the court doing the above balancing test.
G. A defendant's self-serving hearsay statements are not admissible unless the defendant testifies.
- We’ve observed that a practical reason exists for not allowing the introduction of self-serving statements. To permit the introduction of such statements could afford the defendant the opportunity to present his version of the facts without ever being subject to cross-examination by the state. However, once the defendant takes the stand, he can testify that he did make a statement to police which is in their possession and that the basic import of the statement is consistent with his present testimony. The matter then becomes a tactical judgment to be made by the prosecution concerning whether the state should consent to the introduction of the statement into evidence.
H. Prior convictions are for impeachment of credibility: Only the conviction itself, not the underlying facts are admissible.
HOWEVER, sometimes the underlying facts are admissible as proper cross-examination or Spreigl evidence.
I. The same Spreigl rules apply to the defendant as the State: Calling it cross-examination does not excuse failing to follow the rules.
J. The district court has discretion to limit the scope of cross-examination of a prosecution witness based on:
- Danger of unfair prejudice;
- Confusion of the issues;
- Misleading the jury;
- Considerations of undue delay;
- Likely waste of time;
- Likely needless presentation of cumulative evidence; and
- To prevent the witness from being harassed.
- See State v. Daniels, 361 N.W.2d 819 (Minn. 1985) (“The general rule [is] that no adverse inference may be drawn from a party’s failure to produce evidence equally available to both sides.”). See also State v. Swain, 269 N.W.2d 707, 716, 717 (Minn. 1978).
- See State v. Daniels, 361 N.W.2d 819 (Minn. 1985); State v. Jouppis, 179 N.W. 678 (Minn. 1920).
- State v. Harris, 521 N.W.2d 348 (Minn. 1994).
- See State v. Wright, 411 N.W.2d 260 (Minn. Ct. App. 1987).
- See State v. Hagen, 382 N.W.2d 556 (Minn. Ct. App. 1985).
- See State v. Heidelberger, 353 N.W.2d 582 (Minn. Ct. App. 1984)(citing State v. Jones, 271 N.W.2d 534 (Minn. 1978)).
- See State v. Bettin, 295 N.W.2d 542 (1980); State v. Ross, 491 N.W.2d 658 (Minn. 1982).
- State v. Taylor, 258 N.W.2d 615 (Minn. 1977). See also State v. Mills, 562 N.W.2d 276 (Minn. 1997) (“We held that a stenographic statement given by the defendant the day after the commission of the crime was properly excluded as self-serving hearsay because to permit the introduction of such statements could afford the defendant the opportunity to present his version of the facts without ever being subject to cross-examination by the state.”)
- See State v. Griese, 565 N.W.2d 419 (Minn. 1997).
- See State v. Griese, 565 N.W.2d 419 (Minn. 1997).
- See State v. Robinson, 536 N.W.2d 1 (Minn. 1995).
- See State v. Lanz-Terry, 535 N.W.2d 635 (Minn.1995)