August 5, 2014
TRAINING UPDATE 14-13
MINNESOTA JUDICIAL TRAINING UPDATE
OFP ADVISORY TO RESPONDENTS - ANOTHER URBAN MYTH
QUESTION It is a well-known legal axiom that an out-of-court statement made by a partyopponent is admissible against that party as non-hearsay in any subsequent legal proceeding. Mn
Rule Evid 801D(2). During a contested OFP hearing, if the respondent chooses to testify despite the
fact he has a pending domestic assault charge, should the judge, and/or respondent’s attorney,
advise respondent that his testimony could be used against him in his subsequent criminal trial?
ANSWER NO – Despite the above noted legal axiom, a respondent’s OFP testimony CANNOT be
used against him in his subsequent criminal trial. Minnesota law clearly states:
“Any testimony offered by a respondent in a hearing pursuant to this section (Domestic
Abuse Act) is inadmissible in a criminal proceeding.” MS 518B.01, subd 15
There is no similar exclusion provision for testimony offered by a respondent in HRO hearings.
THE PROBLEM – LACK OF KNOWLEDGE The Domestic Abuse Act (518B.01) is huge -- it
spans 15 pages and 23 subdivisions. Subd 15, which excludes a respondent’s OFP testimony in a
subsequent criminal proceeding, consists of two lines and is buried deep within the statute.
Because of this urban myth many legal practitioners incorrectly assume that a respondent’s OFP
testimony can be used against him in a subsequent criminal trial. That assumption is contrary to law.
However, some may ask what the term “inadmissible in a criminal proceeding” actually means. Does
it allow a defendant to perjure himself? Can the testimony be used for impeachment purposes?
Those are all valid concerns. I can find no authority that directly answers those questions.
APPEAL TRIGGER & JUDICIAL BEST PRACTICE If a respondent forgoes his right to testify
at an OFP hearing because the court incorrectly advises him that his testimony CAN be used against
him in a subsequent criminal trial, the court’s ultimate ruling on the OFP petition could be subject to
challenge on appeal (this is a definite appeal trigger).
QUESTION – Per Subd 15, should the court routinely advise an OFP respondent that his testimony is
“inadmissible” against him in a subsequent criminal proceeding? Although not required, many judges
believe such an advisory should be given (and, of course, many do not). The risk is that the judge at
the subsequent criminal proceeding may not interpret the term “inadmissible” the same as you do.
Hon. Alan F. Pendleton, Anoka County Courthouse, Anoka, Mn 55303; 763-422-7309; alan.pendleton@courts.state.mn.us
August 5, 2014
TRAINING UPDATE 14-13
RESOURCES: Hon. Stephen Halsey, Wright County; Steeves v. Campbell, 1994 WL 43860 (Minn.App.)
Hon. Alan F. Pendleton, Anoka County Courthouse, Anoka, Mn 55303; 763-422-7309; alan.pendleton@courts.state.mn.us