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Univ. of South Carolina School of Law

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Monday, March 19, 2012

Cherry Picking: Court Of Appeals Of Minnesota Finds Harmless Error Despite Rule 704 Violation

Minnesota Rule of Evidence 704 provides that

Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact.

That said, under Rule of Evidence 704, witnesses cannot testify regarding ultimate legal conclusions and/or the state of mind of a criminal defendant. But did the witnesses in State v. Hall, 2012 WL 896271 (Minn.App. 2012), cross the line?

In Hall, Phllip Hall was convicted of fourth-degree assault of a police officer and gross-misdemeanor obstruction of legal process. After he was convicted, Hall appealed, claiming, inter alia, that the prosecutor committed prejudicial misconduct by eliciting testimony from the officers regarding his intent and the district court abused its discretion by admitting the testimony. Specifically, Hall challenged two exchanges between the prosecutor and police officers. The first went as follows:

Q: Going back to the behavior that you described in the street, you've described some—an attempted punch, some attempted kicks, and an attempted headbutt, correct?

A: Yes, ma‘am.

Q: Were any of those accidental on the part of [appellant]?

A: No

Q: And how do you know that?

A: Just the deliberate actions of making a fist, raising his arm, you know, in a quick motion towards me. You know, again kicking backward. You know, kicking towards where I was standing. You know, raising his leg off the ground, kicking back towards my direction. You know, also jerking his head forward, you know, very fast. There was—it was obvious in my mind that [appellant] was trying to do those things.

And the second went as follows:

Q: Were the—as you've described them, [appellant's] attempts to kick at the two of you, was that intentionally?

A: It appeared to be. He kept yelling that he was a security guard, he was going to get us fired, making other comments, calling us names. Seemed more aggressive than anything else to us.

Hall did not object to either of these exchanges at trial, meaning that the Court of Appeals of Minnesota could only reverse for plain error. And the court found error, concluding that

"While it is improper to testify as to the subjective intention or knowledge of another, it is proper for the prosecutor to inquire of the complainant what was going through his mind when the actions occurred." State v. Witucki, 420 N.W.2d 217, 222 (Minn.App.1988), review denied (Minn. April 15, 1988). Here, the officers testified that appellant's actions were not accidental and appeared to be intentional. Because the testimony went to the subjective intent of appellant, which we explicitly stated was impermissible in Witucki, the elicitation and admission of the testimony was plain error. The officer could testify as to his "state of mind," but not to that of appellant.

That said, the court did not find reversible error, instead, finding that

because the impermissible statements as to appellant's intent were offered in addition to a series of observations made by the officers that formed the basis for their opinion, we conclude that any harm done by the elicitation and admission of the testimony was mitigated to the point that a new trial is not mandated. We cannot find prejudice to appellant's substantial rights....Given the weight of admissible testimony from which appellant's intent may be inferred, we conclude that the elicitation and admission of the officers' testimony that appellant's actions were not accidental and appeared to be intentional do not constitute reversible error.

Hall confirms what I've long said about ultimate legal conclusion testimony, which is that its improper admission will rarely lead to reversal because such testimony is merely the cherry on top of the prosecutorial sundae. In other words, when a witness for the prosecution offers an ultimate legal conclusion, it is because he has already given testimony that would allow jurors to infer that same conclusion. And, if jurors could infer the same conclusion, a courty is likely to find harmless error.

-CM

http://lawprofessors.typepad.com/evidenceprof/2012/03/minnesota-rule-of-evidence-704provides-that-testimony-in-the-form-of-an-opinion-or-inference-otherwise-admissible-is-not-o.html

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