State v. Leutschaft, Minn.Ct.App., 1/13/2009, Petition for Review pending. Mr. Leutschaft was out in Anoka County in his pickup truck, tooling down Highway 65, tailgating a woman driving a minivan. After a while - too long, apparently for Mr. Leutschaft - the minivan moved into a different lane. As Mr. Leutschaft passed the minivan he pointed a handgun at the woman driving the minivan, then sped away. The minivan driver phoned the cops, who stopped Mr. Leutschaft, then arrested him on suspicion of second degree assault. At trial, Mr. Leutschaft admitted to the bullying driving behavior but contended that he only pointed his finger at the minivan driver, a gesture meant to convey that she should move over for oncoming (him) traffic more quickly.
The jury convicted Mr. Leutschaft of second degree assault. He complained on appeal of prosecutorial misconduct. The state took umbrage with the terminology, saying that "misconduct" implies ethical violations. The state would prefer to denominate the "misconduct" as "prosecutorial error." Judge Shumaker acknowledges the nomenclature if not the point. Even "prosecutorial error" can deprive a defendant of a fair trial.
The appropriate niceties settled the court turns to the law of "prosecutorial misconduct." There was no trial objection to any of the alleged misconduct; "plain error" - its own nicety - rules apply.
First up, the prosecutor impeached Mr. Leutschaft by suggesting that he tailored his testimony to that of the minivan driver. For instance: the minivan driver did not tell the scene officers that during the driving events either that she was wearing sunglasses or on her cell phone; at trial she said that she was neither wearing sunglasses nor on her cell phone. Mr. Leutschaft, in an attempted "gottcha!" moment, testified that she was wearing sunglasses and was have trouble with her cell phone. This leads to these questions on cross examination:
Q. You got to listen to the testimony here of [Minivan Driver], right?
A. Yes, I did.
Q. She didn’t get to listen to yours, right?
A. I don’t know that.
The court says that this comes "dangerously close" to violating the no tailoring rule, which says that “the prosecution cannot use a defendant’s exercise of his right of confrontation to impeach the credibility of his testimony, at least in the absence of evidence that the defendant has tailored his testimony to fit the state’s case.” .” State v. Swanson, 707 N.W.2d 645, 658 (Minn. 2006). It was not, however, "plain error."
Next up: "were they lying" questions. On direct, defense counsel asked Mr. Leutschaft whether he pointed a gun at the minivan driver; he responded, "That is absolutely untrue." Disturbingly, the the court says that this answer "opens the door" to the "were they lying" questions. (So, in an exercise, the purpose of which we are all told is a "search for the truth" be sure that your client never utters the word, true, or any of its variants.)
To be fair, Judge Shumaker does launch into an extensive review of the jurisprudence of "were they lying" questions. He points out that a majority of jurisdictions that have considered the issue had ruled that such questions are "categorically improper." The main rationale for this determination is that neither the questions nor the answers have any probative value.
The minority jurisdictions, including Minnesota, eschew a "bright line" rule in favor of a case by case analysis. The rule that emerges from Minnesota cases is that such questions are permissible when the defense makes the issue of the credibility of the state's witnesses "in central focus." The problems with this rule are obvious:
Since credibility is a ubiquitous issue in trials, except those without factual dispute that raise purely legal questions, it is difficult to imagine a situation when credibility in some sense is not held in central focus. More problematic is the fact that credibility is a broader concept than truthfulness versus lying. It also encompasses honest inaccuracy stemming from deficiencies in the ability or the opportunity to acquire personal knowledge of the facts; honest but faulty recall; and honest but inadequate narrative on the witness stand, which may have numerous linguistic, cultural, and cognitive influences.
The court opines that such "were they lying" questions should only be allowed "when the defense expressly or by unmistakable insinuation accuses a witness of a falsehood." In this instance, Mr. Leutschaft's use of the word, "untrue" arguably opened the door to the prosecutor's questions.
Next. Mr. Leutschaft portrayed himself on direct as conscientious about gun safety. In response, the prosecutor asked questions about such high regard for gun safety, and also about a dismissed charge of carrying a gun without a permit. The court thought that this later set of questions was off the mark; the absence of a gun permit made it neither less nor more likely that he would handle a gun safely by not pointing it at the minivan driver. Again, though, it was error, but not plain error.
Mr. Leutschaft also complained about the prosecutor's closing argument, one part of which was a public policy argument about road rage. The Court concluded that it was okay to use this characterization in discussing whether Mr. Leutschaft pointed a gun at the minivan driver; it crossed the line, however, to allude to more egregious acts that might culminate in an actual shooting. Again, error, but not plain error. Same with closing argument about the absence of a gun permit: error but not plain error.
So, the truth may or may not set you free, but you'd best steer clear of the word. True enough.
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