Judicial Mistakes

II. JUDICIAL LANDMINES
20 COMMON MISTAKES EVERY JUDGE SHOULD AVOID
MINNESOTA JUDICIAL TRAINING & EDUCATION BLOG
Dedicated to the Training & Education of the Minnesota Trial Bench and Attorneys
Posted on November 26, 2013
WHAT IS A JUDICIAL LANDMINE? Judicial Landmines are common judicial mistakes
or oversights that create a high likelihood of triggering an appeal. These judicial
oversights tend to reoccur with every new generation of judges. Most of these mistakes
occur as a result of judicial omission or failing to make a proper record. The following is
a summary list of the 20 most common reoccurring Judicial Landmines.
1. FAILURE TO OBTAIN PERSONAL WAIVER OF DEFENDANT’S RIGHT TO
TESTIFY OR NOT TESTIFY AT TRIAL
Decision to testify or not testify should be on the record and should come expressly
from the defendant, not defense counsel. however, an on the record colloquy with
defendant who does not testify is not legally required. If no record is made, the
presumption is that waiver was voluntary and intelligent – but in a post-conviction
proceeding Defendant can rebut that presumption. State v. Walen, 563 N.W.2d 742,
751 (Minn. 1997); In re Welfare of C.J.W.J., 699 N.W.2d 328, 334 (Minn.App.2005)
(“We repeat this cautionary instruction. With adult defendants, and even more so with
juveniles, even after the attorney has laid the proper record, district courts should get
the defendant's personal acquiescence to the waiver on the record.”); The court should
NOT give CrimJig 3.17 (Defendants right not to testify) unless defendant, not defense
counsel, personally requests the instruction.
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