November 26, 2013
TRAINING UPDATE 13-15
MINNESOTA JUDICIAL TRAINING UPDATE
“JUDICIAL LANDMINES”
20 COMMON MISTAKES EVERY JUDGE SHOULD AVOID
WHAT 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.
1. FAILURE TO OBTAIN PERSONAL WAIVER OF DEFENDANT’S RIGHT TO TESTIFY
OR NOT TESTIFY AT TRIAL
Decision 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.
2. 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2011) (unpublished opinion) (“The defendant must make the waiver personally on the record in open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);
http://ebenchbk.law.umn.edu/index.php/defendant_stipulates_to_an_element
Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
November 26, 2013
TRAINING UPDATE 13-15
3. FAILURE TO OBTAIN DEFENDANT’S PERSONAL WAIVER OF RIGHT TO JURY TRIAL
IN CASES WHERE DEFENDANT ELECTS TO HAVE A COURT TRIAL
Defendant 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).
4. 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).
http://ebenchbk.law.umn.edu/index.php/prosecutorial_misconduct
6. EXCESSIVE COURT INVOLVEMENT IN CRIMINAL PLEA NEGOTIATIONS
The 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 GUILTY
Minn. 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);
http://ebenchbk.law.umn.edu/index.php/guilty_plea_when_defendant_denies_committing_the_offense_
alford_plea;
http://ebenchbk.law.umn.edu/index.php/guilty_plea_when_defendant_has_no_recollection_of_fact__norgaard_plea
Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
November 26, 2013
TRAINING UPDATE 13-15
8. FAILURE TO MAKE A PROPER RECORD TO SUPPORT A “LOTHENBACH”
PLEA/STIPULATION
Minnesota 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
1. 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).
2. 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).
3. 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 ATTORNEY
Minn. 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.
http://ebenchbk.law.umn.edu/index.php/joint_representation_of_co-defendants_in_a_criminal_case
11. INADEQUATE WAIVER OF RIGHT TO BE REPRESENTED BY AN ATTORNEY WHEN
DEFENDANT IS PROCEEDING PRO SE
When 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, 509
Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
November 26, 2013
TRAINING UPDATE 13-15
U.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.); http://ebenchbk.law.umn.edu/index.php/pro_se_defendant
12. DENIAL OF DEFENDANT’S RIGHT TO PROCEED PRO SE WITHOUT MAKING
ADEQUATE FINDINGS TO SUPPORT THE DENIAL
The 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 selfrepresentation 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); http://ebenchbk.law.umn.edu/index.php/pro_se_defendant
13. SETTING UNREASONABLE TIME LIMITS FOR VOIR DIRE
Although 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. http://ebenchbk.law.umn.edu/index.php/limits_on_voir_dire
14. ORDERING DEFENDANT TO WEAR RESTRAINTS DURING TRIAL WITHOUT
MAKING PROPER FINDINGS
Because 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); http://ebenchbk.law.umn.edu/index.php/before_trial
Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
November 26, 2013
TRAINING UPDATE 13-15
15. 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 NAME
In 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.”).
http://ebenchbk.law.umn.edu/index.php/consequences/sanctions_for_failure_of_a_party_in_criminal_ca
se_to_put_a_name_on_witness_list
17. JUDICIAL COMMUNICATION WITH JURY DURING DELIBERATIONS
It 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).
Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309
November 26, 2013
TRAINING UPDATE 13-15
18. FAILURE TO ADDRESS AND DECIDE ALL ISSUES RAISED IN MOTIONS AND
ARGUMENTS.
a) 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.”
b)
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
1. 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).
2. 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 3 rd Year Extern.
Hon. Alan F. Pendleton, Anoka County District Court, Anoka, Mn 55303; 763-422-7309