MINNESOTA JUDICIAL TRAINING & EDUCATION BLOG
01461590061963301117601207135906780 MINNESOTA JUDICIAL TRAINING UPDATE 00 MINNESOTA JUDICIAL TRAINING UPDATE 3810840740 “JUDICIAL LANDMINES”20 COMMON MISTAKES EVERY JUDGE SHOULD AVOID00 “JUDICIAL LANDMINES”20 COMMON MISTAKES EVERY JUDGE SHOULD AVOIDWHAT IS A JUDICIAL LANDMINE? Judicial Landmines are common judicial mistakes or oversights that create a high likelihood of triggering an appeal. These judicial oversights tend to reoccur with every new generation of judges. Most of these mistakes occur as a result of judicial omission or failing to make a proper record. The following is a summary list of the 20 most common reoccurring Judicial Landmines.FAILURE TO OBTAIN PERSONAL WAIVER OF DEFENDANT’S RIGHT TO TESTIFY OR NOT TESTIFY AT TRIALDecision to testify or not testify should be on the record and should come expressly from the defendant, not defense counsel. however, an on the record colloquy with defendant who does not testify is not legally required. If no record is made, the presumption is that waiver was voluntary and intelligent – but in a post-conviction proceeding Defendant can rebut that presumption. State v. Walen, 563 N.W.2d 742, 751 (Minn. 1997); In re Welfare of C.J.W.J., 699 N.W.2d 328, 334 (Minn.App.2005) (“We repeat this cautionary instruction. With adult defendants, and even more so with juveniles, even after the attorney has laid the proper record, district courts should get the defendant's personal acquiescence to the waiver on the record.”); The court should NOT give CrimJig 3.17 (Defendants right not to testify) unless defendant, not defense counsel, personally requests the instruction. FAILURE TO OBTAIN DEFENDANT’S PERSONAL WAIVER OF TRIAL RIGHTS WHEN DEFENDANT STIPULATES TO AN ELEMENT OF THE OFFENSE (i.e. PRIOR CONVICTIONS).Defendant’s right to a jury trial includes the right to be tried on each and every element of the charged offense. In order to stipulate and waive trial on an element of the offense the defendant must personally waive his trial right either orally or in writing. State v. Bible, 2011 WL 691628, at 2 (Minn. App. Mar. 1, 2011) (unpublished opinion) (“The defendant must make the waiver personally on the record in open court either orally or in writing. It cannot be delegated to defendant’s counsel.”) See Judicial Training Update 11-15 (Judicial Mistake #1: When Defendants Stipulate To Element Of Offense); TO OBTAIN DEFENDANT’S PERSONAL WAIVER OF RIGHT TO JURY TRIAL IN CASES WHERE DEFENDANT ELECTS TO HAVE A COURT TRIALDefendant MUST personally waive the right to jury trial. The waiver must come from the defendant, not defense counsel. Strict compliance is required in order to assure that the waiver is voluntarily and intelligently made. State v. Sandmoen, 390 N.W.2d 419, 423 (Minn. App. 1986); Minn. R. Crim. P. 26.01, subd. 1(2)(a); Minn. R. Crim. P. 20.01, subd. 1(a). GRANTING A MISTRIAL OVER OBJECTION OF THE DEFENDANT – MANIFEST INJUSTICE v. DOUBLE JEOPARDY If Defendant consents to a mistrial he waives any claim to double jeopardy. If Defendant objects to a mistrial then jeopardy remains attached unless “manifest injustice” requires the trial to be terminated. Manifest necessity is “an objective necessity apparent not only to the district court but to any reviewing court.” The Court should consider less extreme alternatives than a mistrial (i.e. fewer than 12 jurors, accepting a partial verdict, additional instructions, etc.). State v. Hunter, 815 N.W.2d 518 (Minn.App.2012). 5. FAILURE TO STOP IMPROPER PROSECUTORIAL FINAL ARGUMENT“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); Judicial Training Update 10-14 (Prosecutorial Misconduct). 6. EXCESSIVE COURT INVOLVEMENT IN CRIMINAL PLEA NEGOTIATIONSThe Court may not offer or promise the defendant an anticipated sentence that is not part of an existing agreement between the defendant and the prosecutor. Anytime the court improperly or excessively injects itself into plea negotiations the guilty plea is per se invalid. The district court’s proper role is one of “discreet inquiry into the propriety of the settlement submitted for judicial acceptance.” State v. Melde, A09-1050, Minn.Ct.App. Feb 22, 2010 (Reversed and remanded because the court promised defendant a prison sentence at the low end of the sentencing guidelines range.); Judicial Training Update 10-4 (District Court & Plea Negotiations: How Far Is Too Far).7. PLEAS OF GUILTY: (1) FAILURE TO FOLLOW REQUIREMENTS OF RULE 15 GUILTY PLEA ADVISORY; (2) FAILURE TO ESTABLISH A SUFFICIENT FACTUAL BASIS TO SUPPORT THE PLEA OF GUILTY; (3) FAILURE TO FOLLOW CORRECT PROCEDURE FOR AN ‘ALFORD’ OR ‘NORGAARD’ PLEA OF GUILTYMinn. R. Crim. P. 15.01 (Guilty Plea advisory for felonies and gross misdemeanors); Rule 15.02 (Guilty Plea advisory for misdemeanors); Judicial Training Update 10-15 (Requirements for an Alford Plea of Guilty); Judicial Training Update 10-16 (Requirements for Norgaard Plea of Guilty); Minn. R. Crim. P. 26.01, subds. 3 and 4; State v. Theis, 742 N.W.2d 643 (Minn. 2007) (discussing the need for a proper factual basis); ; 8. FAILURE TO MAKE A PROPER RECORD TO SUPPORT A “LOTHENBACH” PLEA/STIPULATIONMinnesota does not allow a defendant to make a conditional guilty plea. Prior to 1980, in order to preserve the right to appeal a pretrial issue even when no other material facts were in dispute, a criminal defendant was first required to plead “not guilty” and go through a jury trial. Recognizing this was inefficient, the Supreme Court created a procedure to preserve a defendant’s right to appeal a pretrial order and avoid an otherwise unnecessary jury trial. State v. Lothenbach, 296 N.W.2d 854 (Minn.1980); Minn R. Crim. P. 26.01 subd 3 and 4. Because this procedure involves a defendant’s waiver of fundamental rights, failure to make a proper record could result in mandatory reversal. There Are 7 Basic Steps To Every Lothenbach Plea/Stipulation. See Judicial Training Update 10-11. 9. SPREIGL (Bad Acts) and JONES (Impeachment) FACTORS – INADEQUATE FINDINGS SPREIGL: The Supreme Court has developed a five-step process to determine whether to admit Spreigl evidence that MUST be addressed on the record to support the court’s ruling. State v. Ness, 707 N.W.2d 676 (Minn. 2006); Judicial Training Update 12-4 (Spreigl Evidence – 5 Step Process). IMPEACHMENT - PRIOR CONVICTION: The Supreme Court has developed a balancing test and 5 specific findings (the Jones factors) that MUST be addressed on the record to support the court’s ruling. See Judicial Training Update 11-14 (Impeachment – Prior Felony Convictions); State v. Jones, 271 N.W.2d 534 (Minn. 1978).Although there is no absolute requirement that specific “findings” be made on these issues, at least some disclosure that the court has considered and weighed the components of those issues would help obviate appeals. However, making specific “findings” is recommended as a Judicial Best Practice. 10. FAILURE TO PROPERLY ADVISE JOINT DEFENDANTS OF DANGERS OF JOINT REPRESENTATION WHEN THEY ARE REPRESENTED BY THE SAME ATTORNEYMinn. R. Crim. P. 17.03, Subd. 5 sets out the procedure that the court MUST follow before plea or trial when two or more defendants are jointly charged or will be tried jointly, and two or more of them are represented by the same counsel. . INADEQUATE WAIVER OF RIGHT TO BE REPRESENTED BY AN ATTORNEY WHEN DEFENDANT IS PROCEEDING PRO SEWhen a criminal defendant asks to represent himself, the court must determine (1) whether the request is clear, unequivocal, and timely, and (2) whether the defendant knowingly and intelligently waives his right to counsel. State v. Richards, 456 N.W.2d 260, 263 (Minn. 1990). This constitutional requirement is satisfied when the trial court informs the accused of the nature of the charges against him, of his right to be counseled regarding his plea, and of the range of allowable punishments attendant upon the entry of a guilty plea. Iowa v. Tovar, 541 U.S. 77, 81 (2004); In addition to determining that a defendant who seeks to waive counsel is competent, a trial court must satisfy itself that the waiver of his constitutional rights is knowing and voluntary. State v. Camacho, 561 N.W.2d 160 (Minn. 1997) citing to Godinez v. Moran, 509U.S. 389, 399, 400 (1993); State v. Kellogg, 2004 WL 422703, at 2 (Minn. Ct. App. Mar. 9, 2004) (listing topics that the trial judge asked defendant about before allowing him to proceed pro se); State v. Hawanchak, 669 N.W.2d 912, 915 (Minn. App. 2003) (defendant’s right to counsel was violated when there was no record of a knowing and intelligent waiver of his right to counsel); State v. Jones, 772 N.W.2d 496, 505 (Minn. 2009) (Waiver of right to counsel by conduct applies to those defendants who voluntarily engage in misconduct, knowing that they stand to lose the right to counsel, but who are not affirmatively requesting to proceed pro se.); . DENIAL OF DEFENDANT’S RIGHT TO PROCEED PRO SE WITHOUT MAKING ADEQUATE FINDINGS TO SUPPORT THE DENIALThe 6th and 14th amendments of the United States Constitution grant criminal defendants the right to represent themselves in state court proceedings. When a defendant asks to represent himself, it is incumbent on the trial court to conduct an inquiry into the competency of the defendant to make a knowing and intelligent waiver of his right to the assistance of counsel before permitting the defendant to proceed pro se. State v. Bauer, 245 N.W.2d 848, 859 (1976); A violation of Defendant’s right to self-representation could result in reversal even without a showing of prejudice. The Constitution permits states to insist upon representation by counsel for those competent enough to stand trial but who still suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves. Indiana v. Edwards, 554 U.S. 164, 178 (2008); State v. Richards, 456 N.W.2d 260, 263-5 (Minn. 1990); 13. SETTING UNREASONABLE TIME LIMITS FOR VOIR DIREAlthough the trial court has broad discretion to determine the scope of voir dire, it cannot unreasonably and arbitrarily impose time limitations for voir dire. Limitations in terms of time or content must be reasonable in light of the total circumstances of the case. See State v. Petersen, 368 N.W.2d 320 (Minn.App.1985) (limiting each attorney to five minutes for examination of each prospective juror was unreasonable – Reversed); State v. Evans, 352 N.W.2d 824 (Minn.App.1984) (a one-hour cap on voir dire is a per se reversible error jury violation). The Supreme Court Jury Task Force Recommends Five Steps for the Court To Follow Before Placing Time Limits on Voir Dire: 1) Establish Actual Need; 2) Give Several Warnings; 3) Set Reasonable Time Limits; 4) Grant Reasonable Extensions; 5) Avoid Inappropriate Judicial Comments in Presence of Jury. . ORDERING DEFENDANT TO WEAR RESTRAINTS DURING TRIAL WITHOUT MAKING PROPER FINDINGSBecause of the prejudice involved in having a defendant shackled or otherwise restrained, restraints MUST NOT be used “unless the trial judge has found such restraint reasonably necessary to maintain order or security.” A trial judge who orders such restraint shall state the reasons on the record outside the presence of the jury.” The Supreme Court has approved a non-exclusive list of 9 factors to be considered in making the decision of whether to restrain the defendant. See Judicial Training Update 13-5 (Ordering Defendants To Wear Restraints During Trial); Rule 26.03, subd. 2(b), Rules of Criminal Procedure; State v. Jones, 678 N.W.2d 1 (Minn 2004); . FAILURE TO MAKE ADEQUATE FINDINGS TO SUPPORT COURT’S RULING ON A “BATSON” CHALLENGE DURING VOIR DIRE.Neither the state nor the defendant may make peremptory strikes on the basis of race or gender. The Supreme Court has established a three-step analysis that the court MUST follow to properly rule on a “Batson” challenge. See Judicial Training Update 13-2 (Jury Selection “Batson” Challenge). If the court erroneously denies a defendant’s “Batson” challenge defendant is automatically entitled to a new trial. State v. Campbell, 772 N.W.2d 858 (Minn.App.2009); Minn. R. Crim. P. 26.02, Subd. 7.16. REFUSAL TO ALLOW DEFENDANT’S WITNESS TO TESTIFY BECAUSE DEFENDANT FAILED TO NOTIFY PROSECUTION OF WITNESS NAMEIn all felony and gross misdemeanor cases, “[t]he defendant shall supply the prosecuting attorney with the names and addresses of persons whom the defendant intends to call as witnesses at the trial,” and “[t]he prosecuting attorney shall disclose to defense counsel the names and addresses of the persons intended to be called as witnesses at the trial.” Sanctions for a failure to disclose are at the trial court’s discretion. There are three options: (1) do nothing; (2) grant opposing party a continuance; or (3) preclude the witness from testifying. Excluding the witness from testifying is the harshest sanction and should only be ordered after the court has considered the following factors (commonly referred to as the Lindsey factors): (1) The reason why disclosure was not made (intentional or inadvertent); (2) The extent of prejudice to the opposing party; (3) The feasibility of rectifying that prejudice with a continuance. State v. Lindsey, 284 N.W.2d 368 (Minn.1979).State v. Rasinski, 472 N.W.2d 645, 649 (Minn. 1991) (“Our cases may be read to condone the preclusion of a witness only in extreme cases of violation of discovery rules by a defendant, where prejudice to prosecution cannot be cured by any other means.”). 17. JUDICIAL COMMUNICATION WITH JURY DURING DELIBERATIONSIt is fundamental that all proceedings in the trial of a criminal case shall be open and public and shall be conducted in the presence of defendant and counsel. The same is true with respect to any communication between the judge and jury after the case is submitted and the jury has begun deliberations. If the court needs to communicate with the jury during deliberations the best practice is for the court to convene counsel and the defendant in the courtroom and make a contemporaneous record of all communications with the jury, both those that are housekeeping and those that are not, so that the record for appeal is clear. In most cases, it is judicial error for the trial court to communicate with the jury without notice to and outside the presence of defendant and his counsel. State v. Kelley, 517 N.W.2d 905, 908 (Minn. 1994).18. FAILURE TO ADDRESS AND DECIDE ALL ISSUES RAISED IN MOTIONS AND ARGUMENTS.If the court chooses NOT to decide an issue, the judge should, at a minimum, provide an explanation (even a brief one) as to why the matter is not being decided, or need not be decided (e.g., some other issue in the case is fully dispositive of the action). For example: In re Estate of Eckley, 780 N.W.2d 407, 414-15 (Minn. App. 2010) Case remanded because Judge failed to consider specific arguments clearly made by the parties; State v. Stanke, 764 N.W.2d 824, 828 (Minn. 2009) Failure to address severe aggravating factors in sentencing ordinarily results in a remand to the District Court; State v. Jones, 772 N.W.2d 496, 508 (Minn. 2009) Noting that defendant’s application for counsel was denied, but there were neither findings nor any explanation on the record as to the “reasons for denying the application,” which made it “impossible to apply an abuse-of-discretion standard of review of the Court’s denial.” 19. CIVIL LITIGATION - SUMMARY JUDGMENT – IMPROPER FINDINGS The court should NOT make findings of fact on disputed material issues raised in a motion for Summary Judgment. In addition, the court should NOT resolve credibility questions, draw inferences, or assess the weight of the evidence. These are all matters for the trier of fact and should not be addressed by the court on Summary Judgment. See Minn. Rule. Civ. Pro. 56.20. FAILURE TO MAKE STATUTORILY REQUIRED “FINDINGS OF FACT” AND FAILURE TO RESOLVE “CREDIBILITY CONFLICTS” IN EVIDENCE AFTER A COURT TRIAL OR OTHER CONTESTED HEARING REQUIRED FINDINGS OF FACT: This problem can occur in any trial or contested hearing in which there are statutorily required findings of fact. Some examples include failing to address all of the Austin factors in probation revocation hearings, attorneys’ fees, juvenile and TPR cases, civil commitments, the five Dahlberg factors for temporary restraining orders, and especially in marriage dissolution and child custody matters. See Judicial Training Update 11-8 (Probation Revocations – The Austin Factors); Update 13-3 (Post-Decree Motions To Modify Custody Based On Endangerment); Edsten v. Edsten, 407 N.W.2d 102 (Minn.App.1987) (Trial court did not make the required findings, and so we must reverse and remand for finding on the statutory factors.); In the Matter of the Welfare of N.T.K. 619 N.W.2d 209 (Minn.App.2000) (We have repeatedly emphasized the importance of findings in our many published decisions that hold inadequate juvenile disposition findings constitute reversible error.); Crowley Company, Inc. v. Metropolitan Airports Commission, 394 N.W.2d 542 (Minn.App.1986) (The purpose of requiring findings is to permit meaningful review upon appeal and it is therefore necessary that trials courts find facts and state conclusions clearly and specifically). CREDIBILITY CONFLICTS IN EVIDENCE: The court should avoid “findings” that simply describe what the conflicting testimony was without resolving the conflict. The Court may make specific credibility findings (although these are not required), or it may simply indicate which version it found persuasive. No special wording is required as long as the Court can get beyond the descriptive and into the evaluative. RESOURCES: U of M Law Professor Steve Simon; Jennifer Nomura, U of M Law School 3rd Year Extern. ................
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