Prosecutor’s Brief Argument that Victim’s Testimony Need Not Be Corroborated in Order For Jury to Convict is Not Plain Error

State v. Cao, Minn.S.Ct., 9/16/2010.  Krystle Tuma had a little gathering at her place, at which M.G. attended.  M.G.’d been drinking before she arrived and drank quite a bit more once she was there.  She became sick and Ms. Tuma put M.G. to bed upstairs.  An hour and a half later Mr. Cao showed up but then disappeared for a bit, only to be found in bed with M.G., who appeared to be asleep.  M.G. testified that she awoke to find Mr. Cao having sex with her; Mr. Cao said the sex was consensual.  A jury convicted Mr. Cao of third degree criminal sexual conduct.

Mr. Cao complained that the prosecutor’s statement during closing argument that the jury could convict him based on M.G.’s uncorroborated testimony was prejudicial error.  He said that the prosecutor’s statement improperly instructed the jury on the law, a duty exclusively that of the court under Rule 26.03.  The state countered that the rule does not ban prosecutors (or defense attorneys come to that) from making accurate statements of law “congruent with the jury instructions.”  The appellate court punts the question by concluding that the prosecutor’s remark was not “tantamount to a jury instruction.”  By that the appellate court meant that the statement was only a “springboard for a discussion on the strength of the corroborative evidence in the case.” 

The appellate court does warn litigants that in a different case it might hold that telling a jury that a victim’s testimony need not be corroborated is error.  This is because the rule of corroboration is an evidentiary rule and not a burden of persuasion standard.  An argument from a prosecutor that overly emphasizes the rule that a victim’s testimony does not need to be corroborated could end up shifting the burden of proof.