Cited by

And in State v. Leutschaft, we concluded no improper vouching occurred when the prosecutor said, “[victim] was very honest on the stand , both on direct and cross.” rev. denied (Minn. Mar.

A defendant does this by “unmistakable insinuation [that] accuses a witness of a falsehood.”

But this rule “is not designed to prevent the prosecutor from arguing that particular witnesses were or were not credible.” (quotation omitted); , 123 (Minn. 2009) (“While a prosecutor must not personally endorse a witness’s credibility, the State may, in closing argument, argue that a witness was or was not credible.”).

Minnesota is in the minority of jurisdictions that “have held that such questions are generally improper, but have opted to decline a bright-line prohibition in favor of case-by-case resolution through the exercise of judicial discretion.” rev. denied (Minn. Mar.

see also State v. Leutschaft , 6, 426 (Minn. App. 2009) (holding that a prosecutor’s unsubstantiated suggestion that the defendant tailored his trial testimony violates the defendant’s confrontation and due - process rights, but questions about tailoring may be proper if the facts show that possibility), rev. denied (Minn. Mar.

405(b) (governing methods of proving character) ; (stating that the appellant’s testimony about his adherence to gun safety was character evidence that the prosecutor was permitted to rebut with relevant specific instances of conduct), rev. denied (Minn. Mar.

in which we held that even though the prosecutor came “dangerously close” to violating the Swanson rule, “there was at least an arguable suspicion of tailoring.” We concluded that the “facts omitted by Leutschaft in his statements to the police were significant enough that it would be reas

Misconduct “implies a deliberate violation of a rule or practice.” rev. denied (Minn. Mar.

(distinguishing between prosecutorial misconduct and prosecutorial error but applying modified plain-error standard regardless of the characterization), rev. denied (Minn. Mar.

(distinguishing between prosecutorial misconduct and prosecutorial error but applying the modified plain-error test regardless of the characterization), rev. denied (Minn. Mar.

“[T]he specific instance of conduct brought out on cross-examination must be relevant to the character trait the accused has offered.” d 414, 424 (Minn. App. 2009), rev. denied (Minn. Mar.

rev. denied 6 (Minn. Mar.

“The use of the first-person pronoun ‘I’ indicates that the prosecutor has injected his or her personal opinion into an argument.” (citation omitted).

In closing arguments, a prosecutor may not “personally endorse the credibility of witnesses.”

between prosecutorial misconduct and prosecutorial error.” rev. denied (Minn. Mar.

In State v. Leutschaft, we clarified that the “central focus” test established in Pilot and reaffirmed in Morton “appears to apply [only] when the defense expressly accuses opposing witnesses of falsehoods or fabrications.” rev. denied (Minn. Mar.

d 414, 418 (Minn. App. 2009) (explaining that, whereas deliberate violation of rule or practice constitutes prosecutorial misconduct, good -faith mistake or error does not rise to level of misconduct), rev. denied (Minn. Mar.

8 - 25 (Minn. App. 2009) , rev. denied ( Minn. Mar.

See State v. Leutschaft , the Griller analysis to shift the burden of proof between the defendant and the State.

11 the defense expressly or by unmistakable insinuation accuses a witness of a falsehood .” State v. Leutschaft , (emphasis added), review denied (Minn. Mar.

State v. Leutschaft , review denied (Minn. Mar.

(dis cussing distinction between prosecutorial misconduct and prosecutorial error but appl ying plain-error review regardless of characterization of prosecutor’s condu ct when no objection was made), review denied (Minn. Mar.

between prosecutorial misconduct and prosecutorial error.” State v. Leutschaft

Prosecutorial misconduct “implies a deliberate violation of a rule or practice, or perhaps a grossly negl igent transgression,” while prosecutorial error “suggests merely a mistake of some sort, a misstep of a type all trial lawyers make from time to time.”

“We agree that there is an important distinction to be made between prosecutorial misconduct and prosecutorial error.” review denied (Minn. Mar.

This court has explained that district courts “should allow ‘were they lying’ questions only when the defense expressly or by unmistakable insinuation accuses a witness of a falsehood .” (emphasis added).

rsible per se if: (1) “the comments are extensive”; (2) “the comments stress to the jury that an inference of guilt from silence is a basis for conviction”; 2 The state argues in a fo otnote that this statement was not misconduct because it was simply an “unintentional error.” The state’s position is based on a

See State v. Leutschaft , , 425 (Minn. App. 2009) (stating that the prosecutor's characterization of an incident as "road rage" was a "proper comment" when that characterization was used by a witness).

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.

But as we recognized in State v. Leutschaft, “credibility is a broader concept than truthfulness versus 10 lying” and encompasses broader aspects of th e events in question such as a witness’s “faulty recall.” review denied (Minn. Mar.

Prosecutorial misconduct “implies a deliberate violation of a rule of practice,” while prosecutorial error “suggests merely a mistake of some sort, a misstep of a type a ll trial lawyers make from time to time.” 8 (Minn. App. 2009), review denied (Minn. Mar.

review denied (Minn. Mar.

than truthfulness versus lying .” State v. Leutschaft , review denied (Minn. Mar.

“[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).

d that “[w]e agree that there is an important dis tinction to be made between prosecutorial misconduct and prosecutorial error,” in that “[t]he former implies a deliberate violation of a rule of practice, or perhaps a grossly negligent transgression,” while the latter “suggests merely a mistake of some sort, a misstep of a type all trial lawyers make from time to time.” review denied (Minn. Mar.

review denied (Minn. Mar.

Appellant also relies on State v. Leutschaft, in which this court stated that “[t]he ‘central focus’ test appears to apply when the defense expressly accuses opposing witnesses of falsehoods or fabrications.” review denied (Minn. Mar.