Prosecutorial Misconduct Eliciting Inadmissible Testimony

Listen to this article

Appellant challenged his conviction of fourth-degree criminal sexual conduct, arguing that (1) the prosecutor plainly erred by eliciting testimony that appellant wanted an attorney when asked by police to give a statement, (2) the District Court plainly erred by failing to instruct the jury on the intent element, and (3) the District Court erred and inadvertently departed by imposing a consecutive sentence. As to the eliciting of testimony, the Court of Appeals noted that appellant’s approach created a misleading representation that he fully cooperated with the police and never exercised his right to remain silent or his right to an attorney. Under the circumstances, the Court held that the state had a right to respond with evidence that otherwise would have been inadmissible. It also held that the District Court’s erroneous jury instruction did not affect appellant’s substantial rights, we affirm in part. But the District Court erred by imposing a consecutive sentence. Affirmed in part, reversed in part, and remanded.

A15-0023 State v. Mizner (Aitkin County)

Click here for full text