Minnesota Court of Appeals Affirms Second Degree DWI Conviction Despite Prosecutorial Misconduct Claim
In an unpublished decision from the Minnesota Court of Appeals entitled State v. Lucht, Judge Kalitowski affirmed Lucht's conviction for second degree driving while impaired despite her claim of prosecutorial misconduct. Lucht argued that the prosecutor’s use of “were they lying”- type questions during cross-examination constituted prosecutorial error during the trial.
Because Lucht failed to object to the prosecutor’s questions during trial, the alleged prosecutorial error was reviewed under the plain-error standard. To establish plain error, a defendant must show that (1) there was error, (2) the error was plain, and (3) the error affected his or her 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.
Generally, questions designed to elicit testimony from one witness about the credibility of another have no probative value and are considered improper and argumentative. But the prosecutor may ask these questions when the defendant holds the issue of the credibility of the state’s witnesses in central focus.
“Were they lying” - type questions may be permissible when those questions would be particularly probative in clarifying a line of testimony, or when the jury must evaluate the credibility of a witness who claims that everyone but the witness lied, or when the witness flatly denies the occurrence of events, and thereby places the central focus on the credibility of the state’s witnesses.
In this instance, the Court affirmed based upon the fact that no plain error occurred in allowing "were they lying" - type questions. Lucht's version of the facts in her case differed substantially from that of three witnesses to the events in question.
Even if there were an error in allowing such questions:
In light of the strong evidence against appellant–testimony from three witnesses about appellant’s intoxication, the BAC test results, and appellant’s unclear and inconsistent testimony–we conclude that there is no reasonable likelihood that the absence of any prosecutorial error would have significantly affected the jury’s verdict.
This opinion of the Minnesota Court of Appeals sounds radically different from that which was rendered by the Maryland Court of Appeals in 2007. In State v. Hunter, Judge Cathell opined that "When prosecutors ask 'were-they-lying' questions, especially when they ask them of a defendant, they, almost always, will risk reversal."
