Cited by

When credibility is a central issue in a case, reviewing courts “pay special attention to statements that may inflame or prejudice the jury.”

“[A]s a general rule, ‘were they lying’ questions are inappropriate.”

(stating that photos in a murder case “are not rendered inadmissible just because they vividly depict a shocking crime or incidentally tend to arouse the passions and prejudices of the jurors”); (concluding that a video recording of a victim’s dy

5 But after its decision in Pilot, the supreme court later characterized that case as “indicat[ing] that [were-they-lying] questions are permitted in the circumstance when the defendant ‘[holds] the issue of the credibility of the state’s witnesses in central focus.’” (quoting Pilot, d at 517).

For these reasons, prosecutors must refrain from conduct such as endorsing a witness’s credibility, d 89, 106 (Minn. 2009), attempting to bring inadmissible evidence to the attention of the jury, “inflaming the jury’s passions and prejudices against the defendant,” (quotation omitted), and discussing facts not in evidence during closing argument

“Photographs are admissible if they accurately portray anything that a witness may describe in words, or the photographs are helpful as an aid to an oral description of objects and conditions, provided they are relevant to some material issue.”

is a brave girl who deserves justice.” “A prosecutor must avoid inflaming the [fact-finder’s] passions and prejudices against the defendant.” (quotation omitted).

As a general rule, it is inappropriate for the state to ask a criminal defendant “were they lying” questions because such questions “are perceived as unfairly giving the jury the impression that in order to acquit, it must determine that the witness whose testimony contradicts the defendant’s testimony is lyin g.” (citing Pilot, d at 51 6).

“A prosecutor must avoid inflaming the jury’s passions and prejudices against the defendant.” (quotation omitted).

“ An error is harmless beyond a reasonable doubt only if the verdict rendered was surely unattributable to the error.”

Moreover, even in the context of “were they lying” questions, the state may ask such questions when the defense “holds the issue of the credibility of the state’s witnesses in central focus.”

ing arguments, and the error was plain, [Ashfeld] is not entitled to the relief he seeks because he failed to establish, when assessing the closing ar guments as a whole, how the jury was prejudiced by the analogy raised one time in the entire context of all closing arguments.” “A prosecutor must avoid inflaming the jury’s passions and prejudices against the defendant.” State v. Morton , (quotation omitted).

Prosecuting attorneys must “avoid inflaming the jury’ s passions and prejudices against the defendant.” (quotation omitted).

“A prosecutor must avoid inflaming the jury’s passions and prejudices again st the defendant.” State v. Morton , (quotation omitted) .

review denied (Minn. Aug.

State 8 v. Morton, review denied (Minn. Aug.

State v. Crane , review denied (Minn. Aug.

(“While the state’s argument need not be ‘colorless,’ it must be based on the evidence produced at trial, or the reasonable inferences 12 from that evidence.”).

This contradicts the clear rule that a prosecutor cannot refer to evidence outside of the record in closing argument, d 225, 237 (Minn. 2005), and cannot use impeachment evidence as s ubstantive evidence in closing, State v. Radke

See State v. Morton , (noting that “were-they-lying” questions are improper because t hey can create the impression that the jury must believe a witness was lying in order to acquit the defendant).

State v. M orton, State v. Crane , review denied (Minn. Aug.

Such questions “are permissible when the defendant holds the issue of the credibility of the state’s witnesses in central focus.” (quotation and alteration omitted), and this court has approved their use when “the defense expressly or by unmistakable insinuation accuses a witness of a falsehood.” review denied (Minn. Mar.

see also Montjoy, d at 109; see also State v. Ford , (holding that the prosecutor’s comments on accountability “seem less of an impassioned plea to send a message, but rather an inartful .

-36 (Minn. 2005) (holding that defendant’s substantial rights were not violated even where the state improperly referred to his answers to “were they lying” questions in closing argument, thereby emphasizing the misimpression already made to the jury).

” ; see ABA Standards , § 3-6.8(a) (“ In closing argument to a jury, .

When the credibility of the witnesses is a central issue, as it was here, a reviewing court will “pay special attention to statements that may inflame or prejudice the jury.” 36 (Minn. 2005).

“As a general rule, ‘were they lying’ questions have no probative value and are improper and argumentative because 6 they do nothing to assist the jury in assessing witness credibility in its fact-finding mission and in determining the ultimate issue of guilt or innocence.” State v. Pilot , d 511, 518 (Minn. 1999); see also State v. Morton , (stating that “were they lying” questions “shifted the jury’s focus by creating the impression that the jury must c onclude that these two witnesses were ly

(“On ly if the three prongs of [the plain- error test] are satisfied will we assess whether we should address the error to ensure fairness and the integrity of the judicial proceedings.”).

“[S]uch questions are permitted when the defendant [places] the issu e of the credibility of the state’s witnesses in central focus.” (quoting Pilot, d at 517); see also State v. Leutschaft , (noting that the “central focus” test applie s when the defense expressly accuses opposing witnesses of fabrications or falsehoods).

233, 235 (Minn. 2005) ( concluding that the state had asked “were they lying” questions by asking the defendant, “[S]o Janet Spencer wasn’t telling the truth when she was on the stand?” and “so Catherine Cox is not telling the truth?”); -18 (Minn. 1999) (noting that the state

-35 (Minn. 2005); 4 see also Dobbins, d at 511; -60 (Minn. 2008).

“When credibility is a central issue, we pay special attention to statements that may inflame or prejudice the jury.”

Id., d at 318; 237 (Minn. 2005) (holding that “grisly” photos were relevant to show elements of first-degree and second- degree murder and admissible when medical examiner testified to cause of death and probable killing during sexual assault).

(applying plain-error review when a defendant fails to request curative instructions).

losing argument referred to “a difference in perception between victim and alleged perpetrator” and did not “engage in a credibility contest.” Appellant relies on State v. Morton, which concluded that the defendant did not put the witnesses’ credibility at issue because he merely “contradicted their testimony” and “did not state or insinuate that they were deliberately falsifying any of it.”

“Photographs are admissible if they accurately portray anything that a witness may describe in words, or the photographs are helpful as an aid to an oral description of objects and conditions, provided they are relevant to some material issue.” State v. 6 Morton

(holding that the use of “were they lying” questions was improper because “the state shifted the jury's focus by creating the impression that the jury must conclude that these two witnesses were lying in order to acquit Morton”).