Bench & Bar of Minnesota is the official publication of the Minnesota State Bar Association.

Prosecutorial Misconduct

With each new generation of prosecutors, many of the same prosecutorial misconduct mistakes are repeated. Judges differ in their approach to this phenomenon, some waiting to rule on possible objections raised in trial while others raise the issue with the attorneys prior to commencement of trial. Whatever the proclivity of the individual judge, the Minnesota Supreme Court has observed that, “Reducing the incidence of prosecutorial misconduct is a shared obligation and trial courts have a duty to intervene and caution the prosecutor, even in the absence of objection … .” State v. Ramey, 721 N.W.2d 294 (Minn. 2007). Judges and lawyers alike can benefit from being reminded of the following common categories of prosecutorial misconduct:

1) Shifting the Burden of Proof
a) Commenting on defendant’s failure to call witnesses or present evidence.
b) Arguing that state’s case is “undisputed.”
2) Injecting Issues Broader than Guilt or Innocence
a) Race or socioeconomic status when not relevant to the case.
b) Gratuitous attacks on the defendant’s character.
3) Accusing Defendant of Tailoring Testimony, Unless Supported by Evidence
4) Asking “Were They Lying” Questions
5) Eliciting Inadmissible Evidence
6) Misstating the Burden of Proof
7) Misstating the Presumption of Innocence
8. Expressing a Personal Opinion—Vouching
9) Belittling the Defense
10) Inflaming the Passions of the Jury
a) Accountability
b) Appeals to justice
c) Personalizing the argument
11) Commenting on a Defendant’s Failure to Testify
12) Misusing Spreigl Evidence
13) Speculating about Events Absent a Factual Basis
14) Eliciting Improper or Highly Prejudicial Testimony
15) Injecting Self into Proceedings: “I,” “We,” “Me.”
Hon. Alan Pendleton
10th Judicial District

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