Prosecutorial error and misconduct can cause significant problems in the criminal justice system. Prosecutors are ministers of justice who “may not seek a conviction at any price.” A prosecutor has “an affirmative obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence of guilt.”
But the prosecutor is not the only actor in the criminal justice system charged with ensuring a defendant’s right to a fair trial. The trial court judge “has the responsibility for safeguarding both the rights of the accused and the interests of the public in the administration of criminal justice.” The defense attorney’s duty is more single-minded—to zealously advocate for and protect the rights of the defendant within the bounds of the law.
When a prosecutor presents evidence that the defense attorney believes is inadmissible, the defense attorney must decide whether to object. The defense attorney may object, asking the district court to either prevent the jury from hearing inadmissible evidence or issue a curative instruction. However, the defense attorney may not object because the attorney believes the evidence does not harm the defense. Alternatively, counsel might choose not to object because, if the defendant is convicted, the erroneous admission of evidence might win the defendant a new trial and a second bite at the apple.
On appeal after a conviction at trial, defense counsel in Minnesota often chooses to frame the issue of erroneous admission of evidence as prosecutorial misconduct rather than judicial error in failure to exclude the evidence. The issue is rarely framed as ineffective assistance of trial counsel, even though whether to object is a decision entirely in the hands of defense counsel.
There is sound appellate strategy that favors framing the erroneous admission of evidence as prosecutorial misconduct rather than judicial error or ineffective assistance of counsel. When the defense does not object to an alleged trial error, a defendant on appeal gains a more favorable standard of review by raising a claim of prosecutorial misconduct than by arguing judicial error in the failure to sua sponte intervene.
This article will examine the development of the “modified” plain-error standard of review in Minnesota. The article will also show that, regardless of its merits in deterring other types of prosecutorial misconduct, the modified plain-error standard of review is not the proper manner for review of the erroneous admission of evidence. Minnesota courts have inconsistently applied the modified plain-error standard of review when examining claims of prosecutorial misconduct in admitting evidence. Instead of examining such claims as prosecutorial misconduct, they are more properly dealt with as claims of judicial error or ineffective assistance of defense counsel.