State v. Costello

Minnesota, Respondent, STATE of COSTELLO, Petitioner,

Gerard J.

Appellant.

No. C7-00-436.

Supreme Court Minnesota.

June (#271810),

Theodora Gaitas Assistant Defender, MN, State Minneapolis, Public Appellant. for Hatch, Minnesota Michael A. Attorney General, Wells, Eileen Mankato City At- torney, Christopher (#223797), Cain As- Mankato, City Attorney, sistant Mankato MN, Respondent. safety.

inimical CosteUo was public to ultimately charged and with then arrested driving the influence under of aggravated alcohol, of driving under the influence alco- OPINION cancellation, hol, a giving after and driving BLATZ, Chief Justice. trial, At peace name to a officer. false of from the conviction necessity, arises of appeal This asserted defense Costello aggravat- for driving only J. Costello he because appellant arguing Gerard that was under, alcohol, of influence driving ed he was afraid of some other tenants alcohol, driv- under the influence to driving boarding house who had threatened as- cancellation, giving and false after him. sault granted re- peace name We to officer. court in- began, trial the district Before the district court view to decide whether to of its intention aUow parties formed the wit- by allowing erred to during to question witnesses trial. The court nesses Costello’s objection to lodged trial. Costello a blanket held that appeals it that had practice, the state said jurors is allowed under the dis- tioning by objection request.” to “[n]o [Costello’s] trial-management trict court’s inherent words, noted, “In other When affirmed the convictions. We power and join prose- request,” you [CosteUo’s] to the district court reverse and remand ‘WeU, I don’t merely responded, cutor for a trial. * * new cooperative to too want be 28, 1999, record reflects that the court noted the two September On Mankato any objection, engage did fur- but not reports police responded officers to of the matter. ther discussion house. One boarding disturbance officers, Padilla, to Officer Daniel went to In 'its instructions preliminary no house ensure that back of the to trial, gave the court CosteUo’s through the back one exited house following instruction: house, Offi- door. As he came around you Questions by jurors. this trial appellant cer Padilla observed Costello be to submit for Will allowed parking space. a truck out of a backing procedure is a the witnesses. This stop, ap- for signaled He Costello to basis, so applying I’m on a case case he investigate. the vehicle to As proached trial, you may not you’re if in another be Costello, Officer Padilla noted spoke with If have a opportunity. you provided open, filled can of beer on the partially witness, you particular for a cab, floor of the and observed CosteUo your write it down. Unless hand- must slurred, alcohol, speech was smehed of his print. writing very legible, please When Offi- eyes and his were bloodshot. question. Signal Don’t bail- sign identification, cer for Costel- PadUla asked iff, question to bring your who will me. initiahy gave lo a false name date Now, your question keep mind he told he be birth. After was would before the must be submitted charged peace a false name to a giving for witness leaves the witness stand. officer, his actual name gave Costello I’ll not miss a order be sure that to date of birth. I’ll I excuse a witness question, before in- general make a try identifica- Officer PadUla ran correct remember any quiry you you as whether through tion discovered dispatch and so the forget, Sometimes questions. had cancelled as Costello’s Ucense been Officer, on you you Q: if have a you pick- final burden first saw the make sure see did it question, your up, appear moving any that I with urgency away also want as if to in a get hurry? hand. But I to stress it’s you any ques- necessary ask No, just A: appeared just to be—it tions, had more than one trial and I’ve like, completed, had it looked back— question by where one was asked not I came the when around corner of the So, just opportuni- house, juror. right? All an right the in stalls are the back of it is. I’ll the ty, apply that’s all same stalls, house. ap- There’s like three to any your ques- house, rules of parently, evidence at that parking and apply by I to those just backing, tions that asked I saw it and then it I attorneys. particular If decide that a and it stopped, just going gear was into asked, forward, question you. put cannot be I’ll tell go my up. to and I hand no, speculate why your You as it to moving shouldn’t to And didn’t seem be in not asked. I question any urgency. was And if decide I question, hope not to ask a was ask follow-up ques- Costello allowed to interpret it you won’t as some sort of an about truck appeared tions whether the to upon you per- adverse reflection or the gear; prosecutor declined to ask I asking say, oppor- son it. Like it’s an any follow-up questions. it; tunity. yourself You avail question posed The second was to Cos- do, you lot of And if folks don’t. then girlfriend tello’s after cross by examination apply you the same rules and I’ll let the state. Jurors had submitted two writ- know. questions ten during testimony: her “Had trial, either of the During any [other tenants] ever made course sub- you threats to or on questions any previ- [Costello] mitted at five least to the court.1 you ous question any way One was redundant one occasions?” and “Did ques- inform other objection [Costello] tenant’s] tion was because of [the disallowed by Ultimately, you threat to him?” posed prosecu- the state. to The court Padilla, objected questions: question previous three one to tor about Officer one threats, and the court girlfriend, objec- Costello’s and one sustained the to Costello tion, stating that question “gets himself. a little too far afield on at the issue hand.” The The was posed first to Officer did, however, the other question: ask by Padilla after re-cross examination Q: you think question, answered this defense. had ques- Jurors submitted two you but did ever talk Gerard Costello testimony: tions his during you “When or warn him in regard this threat first saw the pickup appear to be —did [other from tenants]? moving urgency, with if any get away as him, IA: warned yes. in a hurry?” “Did appear [Costello] (the sponte, juror’s Sua the court followed the eager lot, of there get parking [to] out etc.)?” with another question: ques- The court asked the first tion: Q: you How did do that?

1. you carrying court records contain evidence of an anything Costello—were questions (I'm additional two written that were pick up? wondering the house to the by by submitted but tire not asked from.)” opened where beer can came court, although record is not clear wheth- "Was Budweiser beer the 'Bush' ] \sic objected er were counsel brand Budweiser?” rejected, sponte, judge: sua "Mr. n * Crawford, Minn. State v. pression, *. Through boss his A: (1905), analyzed this court 104 N.W. 822 Oh, you [his boss]? Q: talked juror question a spontaneous effect of A: Yeah. rights “the substantial the defen- question; a follow-up Costello asked Again, at While Id. 104 N.W. dant.” questions. declined to ask further the state ques- upheld despite conviction was question was written The third trial, facts by juror asked tion after redirect examina- to Costello posed distinguishable from the Crawford Costello, counsel: “Mr. by defense tion in this case both because facts your intended destination what was tioning was solicited Crawford lot?” parking to leave the you attempted case court and the defendant in that The court asked: 100, 104 objection. raise an Id. at did not Q: your intended destination What was Moreover, un- the policies at 824. N.W. attempting to leave you were derlying reasoning Craw- court’s Padilla lot Officer parking before reversal on suspicion that based ford — you? stopped “peaceful court rules could cause technical only I had that I was lawless, A: told Padilla to law-abiding and citizens become about a half a block go to down going of join to the barbarous method and walk there. park the truck and from and of by a resort the court punishing crime Lynch” are, thankfully, appo- less Judge any follow-up party Neither asked — 102, at 825. today. Id. at 104 N.W. site juror question. tions to the third are, must we address issues aggravated was convicted Costello first, juror- the district court’s whether. alcohol, influence of driv driving under the within inherent policy lay questioning alcohol, driving the influence of ing under second, authority; trial-management cancellation, false name giving after can be with- policy applied such a whether court of appeal, officer. On peace to a balance between upsetting the out convictions, conclud affirmed appeals guaranteed that is and defendants state allowing and, third, the ef- system; an adversarial court’s was district within juror questioning on this fect authority trial-management and would case. defendant’s v. case-by-case on a basis. State reviewed (Minn. Costello, 924, 927-28 N.W.2d in clearly has the A district court this appealed Costello App.2001). that which is power “govern[ ] herent vio court, arguing that existence, dignity, to [its] essential impar to a fair trial an right lated his function,” only prop but that discretion is federal jury under both the state and tial “the it is a means to exercised when erly constitutions, in re and therefore resulted * * * ‘con of individual cases disposition error. versible ” In laws.’ re Clerk formable ’ County Compensation, legal Lyon Courts’ appeal Costello’s turns on 781, 176-77, N.W.2d de State Minn. which review novo. question, we Const, 8). (1976) § (Minn.2001). Minn. art. (quoting Cheng, 623 however, decided, yet court This court has not of whether district issue While “con juror questioning is allowing question witnesses whether permit can im- to the laws.”2 one first formable during criminal trials is has procedure on which court suggest every district is not to 2. This question they increasingly turn then to of whether shaped We the role of undermines the adver- litigation changes and advocated question system. sarial The is best ana- would benefit clients. their Id. at historical lyzed against background 520-24. And while Blackstone describes gives appreciation us our cur- system by questions characterized justice. system rent of criminal pro- action,3 every participant these cess which criminal matters have been increasingly by were asked law- from an inquisitorial handled has evolved yers. Id. at 536-37. While defendants system. to an adversarial Accord- witnesses, power retained the Blackstone, ing to charged defendants they increasingly professional deferred to capital common law with crimes were not counsel. Id. at Accordingly, 557-64. point afforded “unless some counsel of law very manner in which evidence prof- was shall arise to be debated.” 4 proper Wil- fered and became accepted shaped by de- Blackstone, liam Commentaries *356. through fense counsel the art of cross- magistrate Both the and the were examination increasing emphasis witnesses, very authorized to evidence, quality such as the cre- few the governed rules introduction of evi- 539-42, hearsay ation of the rule. Id. at Landsman, dence. Stephen The Rise of 564-72. system the American devel- the Adversary Contentious Spirit: Proce- oped from a model that was itself in the Eighteenth Century England, dure in 75 process of adopting system adversarial 497, (1990). Cornell L.Rev. 506 While we today. know counsel, most defendants could retain evidence, or challenge even call witnesses America, spirit of the adversarial who permitted testify would be under system firmly became rooted and constitu- oath, judicial sys- common-law tionally protected the Sixth Amend- tem emphasized and order in a society law Constitution, ment to the United States that predated of the the evolution defense guarantees which the right to counsel.4 bar. Id. at 506-09. Today, the modern adversarial re- by parties, tains questioning but the time, role of

Over British courts evolved toward jurors has investiga- evolved active by greater model characterized respect passive, tors to neutral for observers of the rights procedure, defendants’ to fair evidence, testimony by the more elicited advocates for restrictive standards greater state and independence litigants. Jeffrey Al- the defendant. See S. Berkowitz, though Breaking defense counsel were not allowed Silence: Should felony Question take charge of defenses until Jurors be Allowed to Witnesses question. Many pro- right ruled is in district court 4.The to assistance of counsel is so fun- cedures properly are left to the discretion of system justice damental to the American particular procedure the district court. The at that the Sixth interpret- Amendment has been subject issue here has been the of debate and guarantee right ed to to counsel for indi- courts have reached different conclusions on gent defendants who face incarceration. Gid- its permissibility. 335, 344-45, Wainwright, eon v. 372 U.S. 83 792, (1963); also, S.Ct. e.g., 9 L.Ed.2d 799 see wrote, 3.Blackstone "[T]he occasional Borst, 388, 397, State v. Minn. 278 154 counsel, jury, tions of judge, and the (1967) (exercising superviso- 894 sudden, propounded to the witnesses on a will ry power require appointment of coun- sift out the truth much better than a formal * * represent indigent sel to misdemeanor defen- Blackstone, set interrogatories *.” 3 dants). Commentaries *373.

209 juror ques- Trial?, apparent prevalence 44 L.Rev. 124 Vand. During however, misleading, tioning because (1991). allowed, the practice rarely even when 1980s, however, some aca the late See, encouraged. e.g., States v. United a return to the proposing began demics (2d Cir.1996) Thompson, 76 F.3d the prac (stating strongly discouraged “we way Sup the courts. its into tice found extraordinary compel- practice except per tout porters of such circumstances, question- ling because such (1) including: advantages, trials ceived juror neutrality impair tends to questions juror truth and a search for encourage premature trial de- search; (2) need facilitate liberations”). Further, tepid in addition to complex cases under clarification many support questioning, states (3) facts; jury is finder stand significant procedural limitations on place help and these fact See, juror questioning. e.g., Hays, 883 (4) function; increased perform that commonly at (enumerating P.2d rec- (5) attentiveness; increased sat procedures).5 ommended See, e.g., Hays, isfaction. State though recognized should that even (1994); Kan. P.2d Ber juris- majority practice is allowed 120-22; kowitz, 44 Steven Vand. L.Rev. dictions, courts most have been reluctant Heuer, Tweaking Larry D. & Penrod unreservedly encourage it. Jury Aids to Assessing Commonsense: Nonetheless, although support for Making, Pol’y Pub. & Psychol. Decision ardent, only less questioning has been than (1997). 259, L. 274-76 prohibited practice have four states practice completely While the in criminal trials. See Johnson State, 234, 737, controversy, courts has not been without v. 270 Ga. 507 S.E.2d (1998) rejected (“Clearly, permitted it. is not on the whole have not Juror witness.”); State, question v. is now Amer- Wharton supported (Miss.1998) 985, allowed, (holding is in 734 So.2d ican Bar Association and “juror longer to another, interrogation is no be in federal courts some form court, general- left to discretion the trial but majority and in of states. See and 6 rather is condemned ly Trial Practice Standards at Civil Court”); Note, Ques- outright by this State (1998); Lundy, Juror forbidden Kara Witnesses, Zima, L.Rev.2007, v. 237 Neb. 85 Minn. tioning of (1991) (2001). sys- in this (noting change “[a] & 106 2021-22 n. 105 questions individual should submitted 5. the serious concern surround- To alleviate issue, many adopted pro- among ing jurors have the other states discussion without example, safeguards. in a full (7) For cedural jurors; counsel should be able make issue, Supreme analysis Kansas of the (8) presence jurors; objections outside commonly following noted the recom- Court objections rule on and rele- the court should (1) procedures: court in- should mended (9) asking questions; vance before jurors beginning of the trial that form at jury that no infer- instruct the should witnesses; question the they will be allowed to question if ence be drawn a submitted should (2) questions until the court should not invite asked; (10) only should not the court ask clarification; (3) first asks for questions, although ask the counsel only important should be allowed tions (11) objections; and question are no if there clarification; (4) questions points or opportunity to ask should have counsel (5) writing; jurors in should be submitted Hays, follow-up questions. 883 P.2d (6) directly; witnesses should not jurors whereby prosecutor’s tern become advocates and a suggestion jury of the possible antagonists witnesses does its role was to if determine the evidence suggest on its face a fairer or more was sufficient to convict rather than truth-seeking procedure;” reliable and “the whether the state proved had its case be- judicial process is better yond served a reasonable doubt—-a distinction practice of eliciting time-honored counsel laypeople may find subtle.6 Id. Each heard, evaluated, evidence which is of these cases deep reflects a concern that upon by jurors acted who have no invest- independence maintain from those obtaining ment in case, answers to involved in the objectivity with re- State, they posed”); have evidence, Morrison v. 845 spect to the and a clear under- (Tex.Crim.App.1992). 5.W.2d 888-89 standing of their deciding role as whether Finally, we note that seven states have the state has met its burden of proof. apparently never addressed this issue. Juror questioning must be evaluated Lundy, 85 Minn. L.Rev. at 2022 n. 109. light of its effect on principles. these jurisdictions like To maintain independence objectivi- us, have ty, decided the issue before in this it is a tenet of justice our criminal appeal we too must decide adjudicators whether allow “postpone should * * * witnesses or suspend enhances the final formation of or detracts fair from the administration of opinion until the parties have ‘had their justice in jealously day Minnesota. We have in court’ and presented all the guarded juries role of our criminal information that they consider relevant justice system, many cases reflect our adjudication.” the context of Bóstjan M. concern with maintaining impartiality Zupancic, Truth and Impartiality and independence jury. Process, State Criminal 7 J. Contemp. L. Porter, (Minn.1995), (1982). 526 N.W.2d 359 we 70 This principle particularly characterized independence as the important trials, in criminal in which the “heart of the system,” and reversed a presents first, state all of its evidence conviction prosecutor closing when the only is sometimes after days several argument attempted impinge to on listening to mounting evidence against a independence by playing jurors’ to emo defendant jury that the may any hear ex- 364, tions and fears. Id. at 366. Similar culpatory Minnesota, evidence. ly, we arguments jurors have stated that that ask are instructed: keep “You should jurors put to open themselves the shoes of mind about all the evidence until the the victim are generally improper, trial, v. State end of the you until have heard the Johnson, 199, (Minn.1982), 324 N.W.2d 202 arguments final attorneys, of the and until and we have arguments condemned that you have instructed in the law.” 10 invite the jury facts, to speculate about the Ass’n, Minn. Judges Dist. Minnesota State v. Thompson, 734, 578 Guides, N.W.2d 742 Jury Instruction Crim- Practice — (Minn.1998). inal, (4th Prosecutors ed.1999). also 1.02 CRIMJIG But in distort the proof burden of jury. to the order to ask a question, a must first State v. Thaggard, 804, 527 or, N.W.2d 812 develop hypothesis a very least, at the (Minn.1995). Indeed, we have condemned respond perceived to a flaw in a party’s Salitros, recognized As we in State v. 499 most of case law in this area involves (Minn.1993), N.W.2d improper argu- 815 by prosecutors misconduct simply reflects jury that, ments can and are made generally speaking, only both the defendant defense, the state and the appeal and the fact that can in a criminal case. Id. at 817.

211 pro Due proof production. to burden of before time presentation case a prove beyond cess state requires arrived. has deliberate every reasonable doubt the existence jurors encouraged to are degree To crime re charged. element of the Win issues, legal facts and questions about ask 358, 1068, 364, 90 S.Ct. 25 ship, 397 U.S. a to “at least they encouraged form (1970); Clausen, v. 493 L.Ed.2d 368 State because one cannot opinion tentative prior (Minn.1992). A N.W.2d 116 defen hypothesis a investigate unless one has if rights are violated process dant’s due in the happened what about disprove the existence of the burden to Zupancic, Contemp. 7 J. case.” charged any element of crime is shift encourage L. at 70. with such Wilbur, Mullaney v. ed to the defendant. ment, there is an increased risk 701-02, * * * 44 421 95 S.Ct. U.S. conclusions or “inevitably draw will (1975); v. Auchampach, 508 L.Ed.2d State legal theory before the given on settle (Minn.1995); also see presentations, completed have their parties Florida, 78, 112, 90 v. 399 U.S. Williams instructed the and before the has (1970) (Black, 1893, 26 L.Ed.2d 446 S.Ct. Morrison, jury on the law of case.” J., part dissenting concurring argues at 887. While the state 845 S.W.2d “has an abso part) (stating defendant hy nature test one’s that it is “human to lute, right compel to the State unqualified proce system’s the traditional pothesis,” case, its find its own investigate own and instructions have been crafted dures facts, witnesses, con prove own limit such until sides have activities both resources”). jury through vince the its own arguments presented their could, in pose questions Allowing relevant law. has been instructed cases, testimony elicit from a witness some Appeals As the Texas Court Criminal sufficiently proves an element of Morrison,7 it is “Although impos noted crime, relieving the state of its therefore jurors will guarantee remain sible burden.8 presentation of all of open-minded until instructions, passive de the evidence and provided state assistance probability.” tachment increases direct indi- may be questioning (citing United States S.W.2d assist directly rect. can Juror (8th Cir.1989) Johnson, F.2d ap- prosecution when—as state J., concurring)). (Lay, exclaimed in its brief—“evidence provingly juror question!” could revealed concern about addition our indirectly will can assist impact Juror it a simply illuminates juror prosecution also are con impartiality, on we jurors.9 facet of the case that interests the practice may affect the cerned that case, jurors' questions went to Ap 8. 7.Because the Texas Court of' Criminal defense, but is not Costello’s affirmative it peals appellate jurisdiction has final over imagine a scenario where difficult to Texas, the state of Tex. criminal cases in questions help prove case. the state's 5(a), opinion similarly § Const. its is Art. any persuasive as other state court final Morrison, was example, for the defendant State, appellate Thompson See review. fight murdering the victim a accused of (Minn. 1986) (citing the Tex drug that out a transaction. broke Appeals interpre for one trial, as Court of Criminal At detective n. 2. S.W.2d Supreme tation of a United States Court blood found the victim’s testified about he case). about house. Id. A submitted belonged any of the whether blood surveys sudden, have indicated that While assis- you have the jury participat- * * * prosecution tance to the not a common helping or the state more than * * * occurrence, Heuer, Psychol. Penrod & context, the defendant in this [or] 278-79, is, fact, Pol’y Pub. & L. at [help] the state meet its burden. what here. At oral argument, occurred Counsel: You could look it that way. counsel the state —the prosecutor It’s the state’s position fifty percent trial —described experience Costello’s his of the time it’s going to assist the de- juror questions: with though, fense as well. It change does I was way Counsel: ambivalent one dynamics. said, I the other. “This is a slam-dunk The state’s candid admission that not going case. We’re to have anything jurors’ questions convinced him to respond worry about.” And then when I saw to the defendant’s affirmative defense question, which very first was “Was highlights practice how the attempting the Defendant to leave or tioning can parties’ affect the meeting the showing indicating he was leaving — burden of proof and forces us to acknowl- with form of urgency,” right some away, edge by allowing questioning, the role I thought, ‘They’re taking his affirma- jury of the is changed. Whether one side uh, defense, tive very serious- defense— is benefited more than the other is of ly, respond So, and now have to to it.’ secondary concern. Our concern is not in my standpoint it helped me and I equalizing the number of notches in the helped think it attorney defense be- but, rather, belts of advocates whether the exactly cause now he knows they’re jury is being lured into a role that seriously considering this despite even inconsistent with responsibility its to be an deliberately the fact that he lied about impartial justice. arbiter of As we have identity, they’re now thinking— his previously said: Counsel, Court: isn’t that problem? n * * jury’s [T]he role is not to enforce the recognize You that the was law or teach defendants lessons or something either make

taking seriously or not statements to the public or to “let you seriously, respond to it as an forth”; go word advocate, its role is limited it seems to me that’s deciding dispassionately whether changed dynamic right trial state has met there. its burden in the case at hand of proving the defendant guilty Oh, has, Counsel: it has. The State’s beyond a reasonable doubt. this, position Honor, your on is that— n * n * Salitros, 499 N.W.2d at 819. Because the Maybe prosecutor Court: was actively can asleep at the switch and was going to assist the state in meeting burden, leave some essential jurors’ element out. All of role be compromised.10 defendant. objected Id. Defense approach counsel troubling This as it elevates form hearsay grounds, and the was never ignores over substance and the substance of asked; but the did allow the state to call Protocols, majority’s concern. as used in the testify witness back to the stand to that case, very provide pro- do not sufficient the defendant did wounds, scratches, any not have visible against danger jurors tection the serious of injuries. or Id. stepping important, into the decidedly albeit different, Further, parties. roles of the the Apparently 10. by the dissent is not bothered protocols by set provide forth the dissent no shifting the long occasional of burdens as as guidance as to when should be judge "safeguards” the protocol. follows a

213 in ad- ju- the State has first succeeded the sum, allowing concern about In our mittedly convincing task is two-fold. difficult of witnesses rors to jury guilty.” the defendant First, pose questions opportunity the Williams, 113, at 90 1893 jurors keeping open 399 U.S. S.Ct. may from prevent part dissenting been in in pre- (concurring the has until all evidence mind Second, in the part). context of opportunity pose Specifically the sented. Texas produc- questioning, agree we with the questions may upset the burden Appeals, in criminal trial. Court of which noted persuasion tion We Criminal Morrison, process in “Due in- system and those passive-juror the minimizes believe (1) that are jurors rights are not dividual fundamental problems these because with, life and at hypotheses judgments quality form our co-exist enticed to (2) override, truth-finding the func- and are times missing testimony; pre- about production of tion.” 845 884. we affecting from S.W.2d vented maintaining conclude that the neutral evidence. system role of an adversarial Nonetheless, recognize pri- we outweighs whatever enhancement juror question- mary reason advanced for truthfinding juror question- function that ing enhances the ing allows. Any process function. factfinding grave ability regarding Our concerns the effect factfinding enhances dismissed, has on jury easily juror questioning rights not be as should by parties are not abated research on the factfinding primary remains a function However, truth- justice effects of on the system. mission. na- goal finding surveys Two truth-finding against is balanced —one tional based in of the accused and concerns and one Wisconsin— rights individual As Justice reached the same conclusion: While about freedom.11 noted, part quite jury experi- “A are with their Black criminal trial is satisfied ences, not influenced search for truth. But it is also this assessment “was juror ques- by insuring presence or absence of designed protect ‘freedom’ Heuer, Psychol. & Pub. criminally punished one is unless tions.” Penrod 3 that no Indeed, impedes truth-finding func ju- allowed. the dissent would allow crimination every judge if a trial ror trial v. tion of criminal courts. See Tehan United though 416, Shott, 406, so the dissent too would allow—even 382 86 S.Ct. States ex rel. U.S. "questioning should believes that such be the 459, (1966). prophylac 15 453 And L.Ed.2d exception.” rights protect tic defendants' rules expos freely speaking inhibit from them kept are some kinds of "truth” Scales, State v. N.W.2d the truth. See 518 VanWagner, State v. 504 the factfinder. 587, (Minn. 1994) (requiring peace offi 592 (Minn. 1993) (noting N.W.2d 750 interrogations). Additionally, cers to record Spreigl hearsay and evidence sometimes production privileges of evidence limit properly despite impeding excluded truth- helpful determining to a could VanWagner finding). We stated that "[t]he See, e.g., Kobluk v. Univ. "truth.” prosecutor that truth is bound to seek which Minnesota, (Minn. 1998) 440 574 N.W.2d governed, the rules evidence." 504 D.M.C., (attorney-client privilege); re 331 added); (emphasis N.W.2d at 750 see also (Minn.1983) (medical privi (allowing Minn. R. Evid. exclusion Clark, lege); probative value 296 N.W.2d evidence if its is sub State relevant (Minn. 1980) (marital-communications outweighed danger privi stantially of unfair issues, Swenson, 602, 603, prejudice, misleading confusion of the lege); re Minn. judicial jury, or considerations of efficien (1931) (clergy privilege). N.W. against cy). Similarly, the privilege self-in- Further, Pol’y survey & L. at ques- very heart of our adversarial “jurors’ justice: tions revealed that satisfaction

with their verdict their attitudes to- problem juror with fundamental jury ward service were unaffected their questions gross lies in the distortion of Id.; opportunity questions.” to ask see the adversary system and the miscon- Penrod, Larry also Heuer & Steven In- ception the role as a creasing Participation Juror in Trials neutral in the adversary pro- factfinder Through Question Taking Note Ask- cess. Those who doubt the value of the (1996) (dis- ing, 79 Judicature 256-61 adversary system or who cussing the survey). Wisconsin continuance will object to distortion jury’s However, role. long as as Finally, it noting is worth that the state we adhere an adversary system of advances few compelling arguments justice, the neutrality and objectivity of support of taking such a risk with our juror must be sacrosanct. traditional jury system. The state did not Johnson, J., 892 F.2d at (Lay, concur- oppose objection trial,12 Costello’s at ring). only defended the appeal. court, its briefs to this points state While the juror debate over ques only the possibility questioning tioning will undoubtedly continue, we are “provide[s] [insight] ju- information and persuaded that the exact effect of such ror concerns.” In way, the state ar- questioning is not quantifiable, and the gues, prosecution “[b]oth the and defense inherent significant risks so prac that the can juror’s address a concerns while the must proscribed.13 Morrison, tice See evolving” case is argument that un- 886-89; Zima, —an S.W.2d at 468 N.W.2d derscores the fact that at 379-80. protect the neu impact, can in a very real way, the adver- trality and impartiality —both sarial justice nature of our sys- critical to the fair jus administration of tem. The less-than —enthusiastic toler- tice—we exercise supervisory our power ance of questioning by many of our and hold that no court permit jurors shall states, sister and the limitations created in witnesses a criminal trial.14 attempt to harness dangers implicit Scales, See 518 N.W.2d at 592 (recognizing in such questioning, do not erase our supervisory power over criminal trials “to doubts about the juror ques- assertion that insure the fair justice” administration of tioning simply a matter of trial manage- Borst, (citing 397,154 278 Minn. at Judge ment. As Lay implied 894)); in a concur- see VanWagner, also 504 N.W.2d ring opinion, juror questioning goes to the at 750 (stating that we super- exercise our 12. After Costello stated he did not want questioning. ignores This narrow focus placed to ask a blanket many appellate the fact that while courts have record, objection on the the district court begrudgingly allowed in the name "[a]ny asked the state if it had comments on discretion, majority judges vast of trial that issue?” replied, objection The state "No practice. do not good allow the And for request, your to [Costello’s] Honor.” reason. large part, 13. In support dissent bases its 14.Because of witnesses is allowing juror questioning on the raw proscribed supervisory power, under our we is, majority numbers—that the fact that a need not reach Costello's constitutional appellate courts that have addressed the issue claims. have not barred allowing district courts from evidence, of the state’s “integrity presentation of visory protect power itself’). deliberations, case, it is jury’s and the factfinding process court to infer impossible appellate for Finally, having determined rendered is from a record that verdict allowing ques court erred district “surely to the error. See unattributable” adopt urges this court tioning, the state Juarez, at 292. Juror 572 N.W.2d standard, arguing error a harmless of a tioning leads to “unfairness subtle allowing court erred if the district even nature that is difficult to psychological nor the procedure neither questions, Johnson, 892 identify particularity.” with af in this case questions posed J., (Lay, concurring). n. 1 F.2d at 711 verdict, therefore a new fected inappro- analysis harmless error State v. Jua trial is not warranted. See magnitude of the priate because (“If (Minn.1997) rez, 286, 292 572 N.W.2d error, impossible quan- it is but because ‘surely rendered is unattributa the verdict of the error. tify the effects error, is harm then the error to the ble’ and the a reasonable doubt beyond less super- an exercise of our Accordingly, as stands.”). disagree. Be We conviction hold that no court shall visory power, we allowing juror questions rule cause a court permit questioning a criminal case in the outcome of can affect Further, the effect of trials. because such directly to the neutral ways go subtle ap- and the quantifiable is not juror, of a the error ity impartiality timely objection pellant raised differently than analyzed here must be thereby practice, preserv- court’s district ask to jurors spontaneously where cases appeal, the defendant ing the issue Crawford, 96 witnesses. Cf. holding trial. This given must be new at 825. similar Minn. at N.W. pro- both to the instant case applies a harmless error standard ly rejecting to similar cases where the issue spectively review, Ap Texas of Criminal Court preserved. has been difficulty discerning noted the peals and remanded to the district Reversed ver jury questioning guilty on a effect of for a new trial. dict: as a neutral Where the role of (dis- ANDERSON, H., PAUL Justice body significantly modi- fact-finding senting). fied, underpinnings system, of our trial a fair and designed to ensure I conclude respectfully dissent. While compromised. jury are likewise

impartial practice A of harm this context determination I am unable to discouraged; should Accordingly, we virtually impossible. prohibition total a basis for its ascertain ju- permitting hold that the or under the supervisory powers under our participants in the rors to become active constitutions. At first federal or state' by questioning of evidence solicitation blush, provid- majority appears to have subject analy- harm is not to a witnesses prohibition for the total ed basis sis. using supervisory powers. our Morrison, at 889. 845 S.W.2d However, logical foundation premise on the debatable opinion illuminates rests

The rationale Morrison impar- to be passive to that must be analysis error is unsuited why harmless notion, rejected on the tial. It also rests of error: type because and an overwhelm- the federal production affect the may imperceptibly states, by that bases its conclusion on a statement of other safe- also ing majority integrity Appeals. insure the the Texas Court of Criminal guards used to any potential prob- judicial process that court that particularly, More stated are so inade- juror questioning lems of encourages proba- detachment the passive solution is the total only that the quate jurors that bility open-minded will remain I practice. the While under- elimination of until the of all the presentation evidence concerns, anxiety, and even the stand jurors and that ask draw who majority’s holding, that underlie given legal conclusions or settle on a theo- an un- of prohibition ry parties their completed before have raised, to the concerns necessary solution State, presentations. case Morrison v. 845 light of the available safe- particularly (Tex.Crim.App.1992). 887 S.W.2d though I even con- guards. view, In my majority’s reliance on juror questioning should be the clude that Zupancic’s opin Professor article and the that, subject hold I would exception, Appeals ion of the Texas Court of Criminal permis- safeguards, certain justify is insufficient to the result reached sible. by here. The article Zupancic does not majority begins analysis by ex- The specifically question address the issue jurors is to that the role be plaining Rather, ing by jurors. discusses According observers. passive, neutral investigation impartiality issue maintain majority, jurors their inde- the abstract sense. The decision of the objectivity by waiting to pendence Appeals Texas Court Criminal is based until all the evidence has opinion form an argument juror on the questioning majority But the goes then been received. jurors ability undermines the to be neu asking any question is on to conclude tral authority fact-finders. But the cited contrary passive, neutral role of by the Texas court for proposition asking jurors requires because by Eighth mere assertions the Fourth and develop hypothesis identify juror juror Circuits undermines party’s theory. a flaw with one juror impartiality. United See States conclusion that a majority’s The (8th Cir.1989) Johnson, F.2d 713 can longer who raises a no be J., (Lay, concurring); DeBenedetto v. impartial hypothesis because she has Co., Goodyear Tire & Rubber 754 F.2d mind or has identified a flaw the evi- (4th Cir.1985). Notably, 516-17 all of (1) Bostjan an dence is based on article the federal courts to address issue of Zupancic, visiting professor M. a former juror questioning, including the Fourth Law,1 University Pordham School of Circuits, Eighth permitted it sub (2) opinion an of the Texas Court of Crimi- Johnson, ject certain safeguards. According majority, nal Appeals. 710; Polowichak, F.2d at United States v. Zupancic argues who ask (4th Cir.1986). F.2d None encouraged to form a prior tions are tenta- has utilized the assertion that ques “one opinion tive because cannot investi- tioning undermines impartiality to hypothesis one has a gate unless about practice altogether. eliminate the in the happened what do I only authority Not find the cited Bostjan Zupancic, M. Truth and case.” Process, majority unconvincing, in Criminal 7 J. also find Impartiality (1982). majority majority’s assumption L. Contemp. must judge European Rights Zupancic currently Human Court. elected balance in areas of burden of is at odds with sensitive impartial to be passive upset. not be there is no process proof and the will adversary both ju- totally prohibit practice, inquiry partic- used need rational intellectual that, the fact adversary system, ularly light as the rors. Under acknowledges, it by making majority is not a common begin process the trial parties identifying their re- occurrence for to assist opening statements demonstrating proof. the in its burden of prosecution theories and spective ease Indeed, only absolutely those theo- four states have support how the evidence will trial, jurors prohibited juror questioning evaluate in criminal the Throughout ries. majority while the vast as to determine the trials states piece each of evidence permitted as the federal have it the alternative well supports extent to which juror subject constantly evaluate to certain safe- case theories. Jurors trial, guards. Hays, make See State v. 256 Kan. the evidence the but (1994) (reviewing all 883 P.2d 1097-1100 ultimate decision after evi- their juror questioning the extent to which received. Part of dence has been contemplates permitted that each state and federal process evaluation trials). constantly questions ask herself will evidence and consid- about the flaws encourage A actively court should theory sup- the evidence party’s er which However, if questions. solicit does ports. question, impose I would the follow- pose majority’s argu- contrary to the integrity ing safeguards to insure recipients of jurors passive are ment judicial A court process. permit should information, continuously jurors evaluate of clarification. questions only purposes jurors the evidence. ask themselves When Questions in writing should be submitted appropriate it is for them to questions, to the court a nonintrusive manner. case theories mind respective have the Questions jurors should be raised in the thinking or to be about the flaws jurors. with the other without discussion Indeed, the'parties themselves evidence. testimony The of witnesses should not be provided jurors with the theories by questions jurors. interrupted likely have identified hypotheses propriety court should determine the in the evidence. Because the flaws also decide question. The court should analytical thinking throughout engage question should be asked and the trial, question of a does not thinking pose question. should itself juror’s automatically impar- undermine a opportuni- Counsel should be afforded the tiality. ty object question to the outside the jury. appropriate, majority’s presence concern When addition to the instruct not to on the court should impact about the from the fact that a sub- majority is also concerned draw inferences impartiality, the Finally, not asked. coun- question mitted allowing pose given opportunity should be testimony could elicit from witness sel crime, ju- the witness after the an element of a further examine might prove tend to If posed. I these safe- relieving the state of its burden. ror’s thus followed, However, majority’s con- guards the safe- share this concern. juror questioning undermines reviewing the written cerns that guard judge and alters the burden of impartiality to the witness posed before it is should be alleviated. proof production adequate should be to ensure end, I conclude that is not necessary totally prohibit integrity and fair-

tioning to maintain Instead, judicial process. while

ness of the use,

discouraging its we can allow the subject safeguards. procedural juror ques- would hold that

Accordingly, I permissible within the sound dis-

tioning is subject of the district court

cretion procedural safeguards

nonexclusive list

I have set forth above. would therefore appeals holding

affirm the court of

the district court did not abuse its discre-

tion individual permitted for witnesses.

submit

STRINGER, (dissenting). Justice join in the dissent of Justice Paul H.

Anderson. TOWNSEND, E. M.

Otha Umar a/k/a Petitioner,

Abdullah, Appellant, Minnesota, Respondent.

STATE

No. C6-02-61.

Supreme of Minnesota. Court 27, 2002.

June

Rehearing Aug. Denied

Case Details

Case Name: State v. Costello

Court Name: Supreme Court of Minnesota

Date Published: Jun 13, 2002

Citation: 646 N.W.2d 204

Docket Number: C7-00-436

Court Abbreviation: Minn.