STATE OF MINNESOTA
IN SUPREME COURT
Court of Appeals
Filed: September 14, 2006
Office of Appellate Courts
Scott Wade Ramey,
S Y L L A B U S
On appeal, the plain error doctrine applies to unobjected-to prosecutorial misconduct.
When the plain error doctrine is applied to unobjected-to prosecutorial misconduct, the defendant bears the burden of showing that there was error that was plain. Once the defendant has made such a showing, the burden rests with the state to show that the error did not affect the defendant’s substantial rights.
Reversed and remanded.
Heard, considered, and decided by the court en banc.
O P I N I O N
This appeal arises from a jury trial in which respondent, Scott Wade Ramey, was found guilty of violating an order for protection. The court of appeals reversed Ramey’s conviction, holding that the district court erred in giving a no-adverse-inference instruction without Ramey’s request or consent and the prosecutor committed misconduct during the closing argument. The state petitioned for review, claiming that the court of appeals erred in applying the two-tiered analysis from State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974), to Ramey’s claim of prosecutorial misconduct because Ramey had not made a contemporaneous objection to the asserted misconduct. We granted review on two issues: (1) whether the plain error doctrine applies to unobjected-to prosecutorial misconduct, and (2) the legal standard that should be applied in determining whether the asserted misconduct was prejudicial. We hold that, on appeal, the plain error doctrine applies to unobjected-to prosecutorial misconduct. However, once the defendant has borne the burden of showing that the prosecutorial misconduct was error that was plain, the state bears the burden of showing that the error did not affect the defendant’s substantial rights. We reverse and remand to the court of appeals to determine whether the prosecutor’s conduct constituted plain error affecting substantial rights in accordance with this opinion.
Ramey and S.S. dated for approximately one month in 2001. In February 2003, S.S. obtained an order for protection against Ramey in response to his unwanted attempts to contact her, which sometimes amounted to 20-30 phone calls per day. On April 8, 2003, at approximately 4:00 p.m., S.S. was sleeping at her home. Ramey woke S.S. from her sleep by kissing her on the cheek. S.S. asked Ramey to leave her house multiple times, and he eventually did. S.S. called the police, and the responding officer discovered that Ramey had not yet been served with the order for protection.
Between 8:30 and 9:00 p.m. that night, Ramey returned to S.S.’s home. S.S. did not allow Ramey into the house and instead called 911. When law enforcement officers arrived, Ramey was still outside of S.S.’s home. The responding officer served Ramey with a short-form notification of the order for protection and explained to Ramey that he was to have no contact with S.S. Ramey signed a form acknowledging that he understood the order.
At approximately 2:00 a.m. on April 9, while S.S. was working, she received a telephone call. She recognized the caller as Ramey, immediately hung up the phone, and called the police.
Because Ramey had three
prior domestic-violence convictions, he was charged with felony violation of an
order for protection.
Ramey appealed his
conviction, claiming the district court erred in giving a no-adverse-inference
instruction without his request or consent and that the prosecutor had
committed misconduct during the state’s closing argument. State
v. Ramey, No. A04-1056, 2005 WL 832054, at *1 (
Applying the plain error doctrine,
the court of appeals held that the district court committed plain error when it
gave the no-adverse-inference instruction in the absence of Ramey’s
this case, we must determine whether the court of appeals applied the correct analysis
to Ramey’s claims of prosecutorial misconduct.
This question is one of law, which we review de novo. See
Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (
We first address whether the
plain error doctrine applies to unobjected-to prosecutorial misconduct. Ordinarily, the defendant’s failure to object
to an error at trial forfeits appellate consideration of the issue. State
v. Darris, 648 N.W.2d 232, 241 (
Prior to the development of the plain error doctrine, in Caron we adopted a two-tiered standard to be applied when determining whether prosecutorial misconduct required a new trial:
[I]n cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.
jurisprudence has not been completely consistent on the standard applicable to
an analysis of unobjected-to prosecutorial misconduct. For example, in the 1980s, while some cases
used the Caron standard to analyze unobjected-to
prosecutorial misconduct, we also applied the plain error doctrine in other
cases of unobjected-to prosecutorial misconduct. Compare
State v. Brown, 348 N.W.2d 743, 747 (
1998, we decided State v. Griller,
which clarified the plain error analysis.
583 N.W.2d 736 (
before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.
583 N.W.2d at 740 (footnote omitted). Since
Griller was decided, and particularly
in the last few years, we have most often applied the plain error doctrine,
rather than the Caron standard, when reviewing
cases involving unobjected-to prosecutorial misconduct. See,
e.g., State v. MacLennan, 702 N.W.2d 219, 235 (
the plain error doctrine encourages defendants to object at trial, which is
preferred because the district court is in an unique position to determine what
actions constitute prosecutorial misconduct.
State v. Steward, 645 N.W.2d
115, 121 (
In the past we
have also recognized that defendants may decline to object at trial to secure
reversible error on review. State v. Ray, 659 N.W.2d 736, 747 n.4 (
We would be concerned if defense counsel were deliberately passing on such an objection with the hope of securing reversible error for appeal and, as a result, getting two chances at a jury trial. We again caution defense counsel that the failure to object to improper closing argument may waive any claim of prosecutorial misconduct on appeal.
659 N.W.2d at 747 n.4. Application of the plain error doctrine addresses the possibility that defendants might deliberately pass on objections.
At the same time,
the plain error doctrine “tempers the blow of a rigid application of the
This brings us to the second question for which we granted review: the legal standard to be applied when determining if unobjected-to prosecutorial misconduct is prejudicial. Because we have determined that the plain error doctrine applies to unobjected-to prosecutorial misconduct, the proper legal standard for determining prejudice is whether the plain error affected the defendant’s substantial rights. See Griller,583 N.W.2d at 740. However, although the Griller formulation applies, we conclude that, when prosecutorial misconduct reaches the level of plain or obvious error—conduct the prosecutor should know is improper—the prosecution should bear the burden of demonstrating that its misconduct did not prejudice the defendant’s substantial rights. Although this is a departure from Griller in that Griller places the burden of the entire plain error doctrine on the defendant, 583 N.W.2d at 741, we conclude that prosecutorial misconduct is the type of trial error that justifies a shift in the burden for determining whether the plain error affected the defendant’s substantial rights.
The overarching concern regarding prosecutorial misconduct,
expressed in many of our cases, is that such misconduct may deny the
defendant’s right to a fair trial. See, e.g., State v. Powers, 654 N.W.2d
667, 678 (
We have identified numerous kinds of trial conduct that are
improper for prosecutors. Some examples
are: eliciting inadmissible evidence, State
v. Harris, 521 N.W.2d 348, 353-54 (
have struggled to effectively respond to the problems presented when
prosecutors engage in off-limits conduct.
The Illinois Supreme Court has referred to prosecutorial misconduct as
“a problem that courts across the country have, for the most part, been unable
or unwilling to control.” People v. Johnson, 803 N.E.2d 405, 412 (
Our past attempts to respond to the problem of prosecutorial
misconduct have ranged from the two-tiered Caron
approach, with an enhanced harmless-error standard for so-called “serious”
misconduct, to reversing prophylactically in egregious cases without inquiring
into prejudice, in the exercise of our supervisory powers. See Salitros,
499 N.W.2d at 820; Caron, 300
Ramey would have us address the problem of recurrent prosecutorial misconduct by returning to the pre-Griller approach of considering the defendant’s failure to object simply as a factor weighing against granting a new trial, and scrapping the Caron two-tier test in favor of a single, harmless-beyond-a-reasonable-doubt standard when assessing prejudice. The state asks us to continue to apply Griller plain-error analysis in cases of unobjected-to prosecutorial misconduct, with the burden on the defendant to demonstrate prejudice.
Neither of these suggested approaches has adequately addressed the issue. The pre-Griller approach did not curtail improper conduct by prosecutors and the difficulty with applying the higher harmless-error standard in all cases would make “less serious” misconduct subject to less regulation by the appellate courts. Similarly, placing the burden on the defendant to show prejudice has not been adequate to deter prosecutorial misconduct in the eight years since Griller was decided. Therefore, we conclude that the burden should be on the prosecution to show lack of prejudice before we will affirm a conviction.
As stated previously, under Griller, before an appellate court reviews unobjected-to trial
error, there must be (1) error, (2) that is plain, and (3) affects substantial
rights. Griller, 583 N.W.2d at 740.
If these three prongs are satisfied, the court then assesses whether the
error should be addressed to ensure fairness and the integrity of the judicial
Under the approach we now adopt, the burden would continue to
be on the nonobjecting defendant to demonstrate both that error occurred and
that the error was plain. This is as it
should be because the defendant did not seek any corrective action on the part
of the trial judge. “An error is plain
if it was ‘clear’ or ‘obvious.’” State v. Strommen, 648 N.W.2d 681, 688 (
Our new approach of shifting the burden to the prosecution to show lack of prejudice in prosecutorial misconduct cases best serves policy concerns. The benefits of this approach are to better allow substantive review of conduct that prosecutors should know is clearly forbidden and to put the onus on the prosecution to defend against the prejudicial effect of its own misconduct. A further benefit of this approach is to provide more scrutinizing review by the court of appeals, where a large majority of prosecutorial misconduct appeals are decided.
Placing the burden on the prosecution to show lack of prejudice is not a novel approach. In Chapman v. California, the case in which the United States Supreme Court held that constitutional error can be harmless, the Court placed the burden on the government, stating:
Certainly error, constitutional error * * * casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.
Reducing the incidence of
prosecutorial misconduct is a shared obligation of prosecutors, who need to be
aware of and comply with prescribed standards of conduct; defense counsel, who
should seek corrective action by the trial court when misconduct occurs; and
trial courts that, we have stated, “have a duty to intervene and caution the
prosecutor, even in the absence of objection, in appropriate
circumstances.” State v. Glaze, 452 N.W.2d 655, 662 (
Reversed and remanded.
C O N C U R R E N C E
ANDERSON, Paul H., Justice (concurring).
I concur in the opinion of the majority. I write separately to address the majority’s conclusion that, when we conduct a plain error review of unobjected-to prosecutorial misconduct, the state, rather than the defendant, should bear the burden of persuasion on the third prong of the plain error doctrine.
a doubt, the majority’s holding represents a sharp and radical departure—a 180°
turn—from our court’s and the United States Supreme Court’s jurisprudence as to
the burden of persuasion on the third prong of the plain error test.
In essence, this case is about how we as an appellate court go about doing our business. I would much prefer an approach whereby, in the context of this issue in this case, we adhere to our well-established precedent, but in the majority or by concurrence or dissent signal that we invite arguments in the future that specifically address this issue. Under such circumstances, we would have the benefit of well-developed arguments, could properly evaluate the merits of each side’s argument, and could then decide this issue. It is for this reason that I believe it is imprudent for us to adopt the burden-shifting change adopted by the majority. Based upon the facts and arguments presented here, I conclude that, for now, it is best that we adhere to our well-established precedent and the guidance provided by the United States Supreme Court.
C O N C U R R E N C E
GILDEA, Justice (concurring).
I agree with the majority that plain error analysis applies when reviewing unobjected-to prosecutorial misconduct and that the third prong of the plain error test is the appropriate standard for determining prejudice. I write separately because I believe that the majority’s new plain error formulation, shifting the burden to the state to show that prosecutorial misconduct did not affect the defendant’s substantial rights, ignores the doctrine of stare decisis and creates unprecedented new law without compelling reason. As we have done in our prior cases, I would continue to place the burden on the defendant to show that any error that was plain affected substantial rights.
ago we emphasized the importance of the doctrine of stare decisis to the rule
Government by law instead of by man, which is the main bulwark to our democratic form of government, demands a decent respect for the rule of stare decisis in order that citizens of this state will be assured that decisions of the court are good for more than “one trip and one day only.”
Under the majority’s new approach, the defendant bears the burden of proof under the first two prongs of the plain error analysis, but the state would bear the burden under the third prong. This is contradictory to our court rule and our case law, which has placed the burden on the defendant to satisfy each element of the plain error analysis before an appellate court will address unpreserved error.
reached by the majority is at odds with Minnesota Rule of Criminal Procedure
31.02. In United States v. Olano, which we relied on as the basis for our
plain error analysis, the U.S. Supreme Court explained that the basis for placing
the burden on the defendant in the plain error analysis is the language of the
rule itself. 507 U.S. 725, 734-35 (1993)
(“This burden shifting is dictated by a subtle but important difference in
language between the two parts of Rule 52: While Rule 52(a) precludes error
correction only if the error ‘does not
affect substantial rights,’ Rule 52(b) authorizes no remedy unless the error does ‘affec[t] substantial
rights.’”). Our Rule 31.02 contains the
identical language and indeed our rule is based on the federal rule. See
Minn. R. Crim. P. 31 cmt.—1990 (“Rule 31.01 (Harmless Error) comes from F.R.
Crim P. 52(a). Rule 31.02 (Plain Error)
comes from F.R. Crim. P. 52(b).”).
Because Rule 31.02 permits an appellate court to consider unpreserved
error only if the error does affect
substantial rights, it is logical to place the burden of persuasion on the
defendant to show the error did affect
substantial rights—and not on the state to prove the negative. This is the approach we have taken in our
cases since the development of the plain error doctrine in
In State v. Griller, our controlling plain error case,we interpreted the plain error analysis in accordance with the U.S. Supreme Court’s jurisprudence:
The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.
583 N.W.2d 736,741
The third prong, requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case. The defendant bears the burden of persuasion on this third prong. We consider this to be a heavy burden.
Griller, 583 N.W.2d at741 (citing Olano, 507
Although Griller did not specifically address unobjected-to prosecutorial
misconduct, we have cited Griller for
the proposition that before an appellate court will consider a defendant’s
claim of unobjected-to prosecutorial misconduct, the defendant bears the burden
of proof under all prongs of the plain error analysis—including
the prejudice prong.
Taken together, these cases form
strong precedent for the proposition that the defendant, and not the state,
bears the burden to show that unobjected-to prosecutorial misconduct affected
the defendant’s substantial rights. The majority’s
new rule overturns this precedent and creates a new plain error analysis applicable
only to unobjected-to prosecutorial misconduct.
Under the majority’s new rule, this court will address unpreserved error
if it (1) is error, (2) that is plain, and (3) the state cannot show that the
error did not affect the defendant’s substantial rights. The burden shift amounts to a presumption
that the error affected substantial rights—leaving the state to defend itself
against that presumption when it was the defendant who failed to preserve the
error properly during trial. This
improper shift in burden is inconsistent with our precedent on prosecutorial
misconduct, and it ignores the concerns we expressed in State v. Ray, that defendants might deliberately pass on an
objection at trial. 659 N.W.2d 736, 747
from our established precedent, the majority cites authority from other
jurisdictions. But this authority does
not provide a compelling reason for us to depart from our precedent. The majority relies on cases from other
jurisdictions that place the burden of proof on the state in the context of a harmless error analysis. See
also cites a
The majority arrives at its
conclusion that we must overrule our precedent because it says that “placing
the burden on the defendant to show prejudice has not been adequate to deter
prosecutorial misconduct in the eight years since Griller was decided.” Just
how placing the burden on the prosecution will deter misconduct the majority
does not say. In any event, the
majority’s speculative hoped-for outcome does not constitute a compelling
reason to depart from precedent. Cf. Oanes,
617 N.W.2d at 405 (finding “contradictory line of cases” from
The majority suggests that public policy concerns regarding prosecutorial misconduct provide a compelling reason to depart from our established precedent. I agree with the majority that prosecutorial misconduct is a serious issue. Because the issue is a form of professional misconduct, I believe the problem of prosecutorial misconduct is better dealt with through the efforts of the Office of Lawyers Professional Responsibility than through a rejection of our precedent. See, e.g., Minn. R. Prof. Conduct 3.8 cmt. (“Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecutorial discretion could constitute a violation of Rule 8.4.”).
Finally, the majority claims that its new burden-shifting rule will serve policy concerns by “better allow[ing] substantive review of conduct that prosecutors should know is clearly forbidden and [putting] the onus on the prosecution to defend against the prejudicial effect of its own misconduct.” It is unclear to me why a shift in burden would better allow the substantive review of prosecutorial misconduct. This court has a strong history of providing substantive review of claims of prosecutorial misconduct, even with the burden to show prejudice placed on the defendant. In short, the policy concerns the majority identifies do not provide a compelling reason to depart from our precedent.
I would retain our original formulation for plain error in cases of unobjected-to prosecutorial misconduct.
ANDERSON, G. Barry, Justice (concurring).
I join in the concurrence of Justice Gildea.
 In the court of appeals, Ramey raised as error the following comments, which he claimed improperly interjected the state’s opinion and improperly vouched for witnesses:
(1) “The State charged Mr. Ramey, entered this trial believing he’s guilty.”
(2) “That would be a big coincidence if it wasn’t the defendant, and the State believes that would be too big of a coincidence. The State believes that’s too big of a bridge to jump.”
(3) “The State believes her testimony is credible. The officer[s’] testimony is credible and you should believe what they told you.”
(4) “We suggest there [is] no evidence that you can find that [S.S.] was somehow affected, that she couldn’t have—couldn’t have accurately identified Ramey’s voice.”
defendant in Caron had not objected
to the alleged misconduct. 300
have also held that where defense counsel does not object to improper
prosecutorial argument and instead chooses to respond in the defense summation,
the defendant forfeits consideration of the issue on appeal. State
v. Whisonant, 331 N.W.2d 766, 769 (
decision today leads us to conclude that the Caron two-tiered standard is no longer applicable to cases
involving unobjected-to prosecutorial misconduct. Although Caron
addressed an instance of unobjected-to prosecutorial misconduct, the concept of
plain error was not embraced in
cited these standards in Salitros and
noted that just as a prosecutor is a minister of justice, defense counsel “is
neither a mouthpiece nor an ordinary agent, but a professional advocate
governed by rules of professional ethics and decorum.” 499 N.W.2d at 817. In Salitros
we also noted that because only convicted defendants can ordinarily appeal
following trial, our opinions tend to focus on prosecutorial misconduct but
that we are aware that the problem of trial misconduct is not limited to the
court of appeals does not exercise supervisory powers that are reserved to this
court. State v. Gilmartin, 535 N.W.2d 650, 653 (
 In essence, the majority’s result rewrites Rule 31.02. In my view, we should not rewrite our court rules in specific cases, as the majority does here, especially when the issue was not briefed. We have a process for revision of court rules, and that process should be followed before rules are changed.