Judicial Mistakes

2. FAILURE TO OBTAIN DEFENDANT’S PERSONAL WAIVER OF TRIAL
RIGHTS WHEN DEFENDANT STIPULATES TO AN ELEMENT OF THE
OFFENSE (i.e. PRIOR CONVICTIONS).
Defendant’s right to a jury trial includes the right to be tried on each and every element
of the charged offense. In order to stipulate and waive trial on an element of the offense
the defendant must personally waive his trial right either orally or in writing. State v.
Bible, 2011 WL 691628, at 2 (Minn. App. Mar. 1, 2011) (unpublished opinion) (“The
defendant must make the waiver personally on the record in open court either orally or
in writing. It cannot be delegated to defendant’s counsel.”) See Judicial Training Update
11-15 (Judicial Mistake #1: When Defendants Stipulate To Element Of Offense);
http://ebenchbk.law.umn.edu/index.php/defendant_stipulates_to_an_element
3. FAILURE TO OBTAIN DEFENDANT’S PERSONAL WAIVER OF RIGHT TO
JURY TRIAL IN CASES WHERE DEFENDANT ELECTS TO HAVE A COURT
TRIAL
Defendant MUST personally waive the right to jury trial. The waiver must come from the
defendant, not defense counsel. Strict compliance is required in order to assure that the
waiver is voluntarily and intelligently made. State v. Sandmoen, 390 N.W.2d 419, 423
(Minn. App. 1986); Minn. R. Crim. P. 26.01, subd. 1(2)(a); Minn. R. Crim. P. 20.01,
subd. 1(a).
4. GRANTING A MISTRIAL OVER OBJECTION OF THE DEFENDANT –
MANIFEST
INJUSTICE v. DOUBLE JEOPARDY
If Defendant consents to a mistrial he waives any claim to double jeopardy. If Defendant
objects to a mistrial then jeopardy remains attached unless “manifest injustice” requires
the trial to be terminated. Manifest necessity is “an objective necessity apparent not only
to the district court but to any reviewing court.” The Court should consider less extreme
alternatives than a mistrial (i.e. fewer than 12 jurors, accepting a partial verdict,
additional instructions, etc.). State v. Hunter, 815 N.W.2d 518 (Minn.App.2012).
5. FAILURE TO STOP IMPROPER PROSECUTORIAL FINAL ARGUMENT
“Reducing the incidence of prosecutorial misconduct is a shared obligation and trial
courts have a duty to intervene and caution the prosecutor, even in the absence of
objection…..” State v. Ramey, 721 N.W.2d 294 (Minn. 2007); Judicial Training Update
10-14 (Prosecutorial Misconduct).
http://ebenchbk.law.umn.edu/index.php/prosecutorial_misconduct
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