State of Minnesota,

1
STATE OF MINNESOTA

IN SUPREME COURT

A19-0157

Court of Appeals McKeig, J.
Dissenting, Hudson, J., Gildea, C.J.

State of Minnesota,

Respondent,
vs.
Filed: March 31, 2021
Office of Appellate Courts
Raciel Zalva Zaldivar-Proenza,

Appellant.
________________________
Keith Ellison, Attorney General; Peter Magnuson, Assistant Attorney General, Saint Paul,
Minnesota; and
Danielle Olson, Swift County Attorney, Benson, Minnesota, for respondent.
Cathryn Middlebrook, Chief Appellate Public Defender, Jennifer Workman Jesness,
Assistant State Public Defender, Saint Paul, Minnesota, for appellant.
_______________________
S Y L L A B U S
An otherwise-valid discovery motion made by the State at the defendant’s first court
appearance to obtain transitory evidence from the defendant’s body in a non-invasive
manner pursuant to Minn. R. Crim. P. 9.02, subd. 2, is not a critical stage of a criminal
proceeding that requires the presence of defense counsel when the risk of counsel’s absence
jeopardizing the defendant’s right to a fair trial is minimal.
Affirmed.

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O P I N I O N
MCKEIG, Justice.
This case presents an issue of first impression. At appellant Raciel Zalva Zaldivar-
Proenza’s first court appearance on criminal sexual conduct charges, the State made a
discovery motion under Minn. R. Crim. P. 9.02 to take photographs of transitory scratch
marks on Zaldivar-Proenza’s arms. The question before us is whether, under the
circumstances presented here, the discovery motion was a “critical stage” of the criminal
proceeding that entitled Zaldivar-Proenza to have counsel present. We conclude that such
a Rule 9.02 motion is not a critical stage when, as here, the risk that counsel’s absence
would jeopardize the defendant’s right to a fair trial, is minimal. Thus, we affirm the
decision of the court of appeals.
FACTS
On May 18, 2018, L.P.S. was an overnight guest at the home of A.R.E.B. Both
women slept in the same bedroom. Early the next morning, appellant Raciel Zalva
Zaldivar-Proenza observed that the side door to A.R.E.B.’s house was open. A.R.E.B. had
previously given him permission to enter her house because he takes care of it when she is
not home. He went into the house and the bedroom to see if anything was wrong. A.R.E.B.
woke when Zaldivar-Proenza entered the bedroom, and she told him everything was okay.
A.R.E.B. then asked Zaldivar-Proenza to leave the house and went back to sleep.
L.P.S. woke to find Zaldivar-Proenza touching her bare buttocks with his hands.
The blankets had been removed and L.P.S.’s leggings and underwear were pulled down.
L.P.S. pushed Zaldivar-Proenza away and scratched his arm, breaking her fingernail in the

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process. L.P.S. yelled at Zaldivar-Proenza to leave the house. He left the room, but then
returned and began “insulting” her. A.R.E.B. woke and observed Zaldivar-Proenza
standing at the foot of her bed while arguing with L.P.S. When A.R.E.B. asked what was
going on, L.P.S. stated that Zaldivar-Proenza had touched her sexually. Zaldivar-Proenza
left when L.P.S. called the police. A deputy from the Swift County Sherriff’s Department
responded to the 911 call made from A.R.E.B.’s residence. He interviewed both A.R.E.B.
and L.P.S. and took photographs of L.P.S.’s broken fingernail.
The next day, Zaldivar-Proenza was arrested and charged by complaint with fourth-
degree and fifth-degree criminal sexual conduct. The State also filed a motion to conduct
a physical examination of Zaldivar-Proenza under Minn. R. Crim. P. 9.02, subd. 2(1), to
inspect his arms for evidence of scratches and take photographs.
Zaldivar-Proenza’s first court appearance took place on the following day. The
district court set bail and determined that Zaldivar-Proenza qualified for a public defender.
The district court told Zaldivar-Proenza that he would be represented by counsel at the next
court hearing.
At the end of the first appearance hearing, the district court asked about the Rule
9.02 discovery motion filed by the State. The district court noted: “I’d like to preserve his
right to legal counsel to address that. Is that a timely — are we looking at something that
needs to be done very rapidly?” The prosecutor responded that he was “not sure how
long . . . a scratch would appear on a body” and “the offense did occur two days ago.” The
district court granted the State’s motion. Following the hearing, photographs of Zaldivar-
Proenza’s arm were taken.

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Zaldivar-Proenza filed a motion to suppress. He argued that the photographs taken
during the physical examination conducted under Minn. R. Crim. P. 9.02 must be
suppressed because the State improperly requested the inspection without providing him
and his counsel a full and fair opportunity to object and respond.
The district court denied Zaldivar-Proenza’s motion to suppress. The district court
found that the physical inspection allowed under Minn. R. Crim. P. 9.02 did not violate
Zaldivar-Proenza’s right to counsel because that right did not attach during his first
appearance, citing State ex rel. Ahlstrand v. Tahash, 123 N.W.2d 325 (Minn. 1963). The
district court also found that the State’s motion for permission to conduct the physical exam
complied with the requirements of Minn. R. Crim. P. 9.02.
During the jury trial, the State offered and the district court admitted the
photographs of the scratches on Zaldivar-Proenza’s arm. Zaldivar-Proenza testified at trial
and denied having sexual contact with L.P.S. He explained that on the weekend of the
alleged offense, he and his brother worked on rolling and moving barbed wire fencing and
that fencing caused the scratches. The jury found Zaldivar-Proenza guilty of fourth-degree
and fifth-degree criminal sexual conduct. The district court sentenced him to 78 months in
prison.
On appeal, Zaldivar-Proenza argued that his Sixth Amendment right to counsel was
violated when the State made and the district court granted the Rule 9.02 discovery motion

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without his counsel present. 1 The court of appeals concluded, “in this narrow set of
circumstances, where there was minimal risk that the absence of counsel would result in
an unfair trial, the discovery hearing on an otherwise-valid discovery request to
noninvasively photograph scratches was not a critical stage of the proceedings.” State v.
Zaldivar-Proenza, A19-0157, 2020 WL 290442, at *4 (Minn. App. Jan. 21, 2020). The
court of appeals reasoned “[ i]n the abstract, the handling of a discovery request might
generally be viewed as a critical stage of proceedings” because it “may involve a
confrontation between the two parties governed by the rules of criminal procedure, during
which counsel could provide important advice and guidance on both how best to comply
with the request and how to challenge the request.” Id. at *3. However, the court of appeals
observed, “in Gilbert v. California, the United States Supreme Court held that a discovery
matter is not a critical stage when ‘there is minimal risk that the absence of counsel might
derogate from [a defendant’s] right to a fair trial.’ ” Id. (citing 388 U.S. 263, 267 (1967))
(alteration in original). The court of appeals determined that “this case is analogous to
Gilbert” because “Zaldivar-Proenza has not shown that he lost any legal right by not having
an attorney present at the discovery -hearing portion of his initial appearance” and he was
able to later challenge the State’s use of the photographs by filing a suppression motion.
Id. Thus, the court of appeals concluded that there was no violation of Zaldivar-Proenza’s
Sixth Amendment right to counsel.

1 Zaldivar-Proenza also challenged the district court’s decision to prohibit his brother
from testifying at trial. This issue is not before us.

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We granted Zaldivar-Proenza’s petition for review.
ANALYSIS
Both the Minnesota Constitution and the United States Constitution guarantee a
criminal defendant the right to legal representation. Minn. Const. art. I, § 6; U.S. Const.
amend. VI. The right to counsel serves to protect the defendant who “lacks both the skill
and knowledge” to defend himself. Powell v. Alabama, 287 U.S. 45, 69 (1932). The
Supreme Court has stated that there is a constitutional right to counsel not only at trial but
also at critical stages before trial.
A “critical stage” is defined as “pretrial procedures that would impair defense on
the merits if the accused is required to proceed without counsel.” Gerstein v. Pugh, 420
U.S. 103, 122 (1975). Critical stages include “proceedings between an individual and
agents of the State . . . that amount to trial-like confrontations, at which counsel would help
the accused in coping with legal problems or . . . meeting his adversary.” Rothgery v.
Gillespie Cnty., 554 U.S. 191, 212 n.16 (2008) (citations omitted) (internal quotation marks
omitted) (second omission in original). “[C]ounsel must be appointed within a reasonable
time after” the right to counsel attaches “to allow for adequate representation at any critical
stage before trial.” Id. at 212. The test to determine whether a defendant requires the
presence of counsel is “whether the accused required aid in coping with legal problems or
assistance in meeting his adversary.” United States v. Ash, 413 U.S. 300, 313 (1973).
The United States Supreme Court has found that critical stages include: pretrial
arraignments where certain rights may be sacrificed or lost, Hamilton v. Alabama, 368 U.S.
52, 54 (1961); pretrial custodial interrogations, Miranda v. Arizona, 384 U.S. 436, 471

7
(1966); pretrial in- person lineups, United States v. Wade , 388 U.S. 218, 236–37 (1967);
preliminary hearings where the sole purpose is to determine whether there is sufficient
evidence against the defendant to present the case to a grand jury, Coleman v. Alabama.
399 U.S. 1, 9 (1970); and pretrial psychiatric examinations conducted without the
knowledge of the defendant’s attorney, Estelle v. Smith, 451 U.S. 454, 469-71 (1981).
The question before us is whether the district court violated Zaldivar-Proenza’s
Sixth Amendment right to counsel when it granted the State’s Rule 9.02 motion for a
physical examination at the first appearance hearing. 2 Minnesota Rule of Criminal
Procedure 9.02, subd. 2(1) permits, as applicable here:
On the prosecutor’s motion, with notice to the defense and a showing that
one or more of the discovery procedures described below will materially aid
in determining whether the defendant committed the offense charged, the
court before trial may, subject to constitutional limitations, order a defendant
to . . . [p]ose for photographs not involving re-enactment of a scene . . . and
submit to reasonable physical or medical inspection.

Minn. R. Crim. P. 9.02, subd. 2(1)(e),(h). Zaldivar-Proenza asserts that because the
discovery motion for a physical examination is a critical stage in a criminal prosecution
whenever it happens, the district court could not proceed without Zaldivar-Proenza’s
attorney present. Zaldivar-Proenza asserts that this was a prejudicial structural error

2 In State ex rel. Ahlstrand v. Tahash, 123 N.W.2d 325, 326 (Minn. 1963), we held
that the constitutional right to counsel does not attach during a defendant’s first court
appearance conducted pursuant to Minn. R. Crim. P. 5.02. The issue in this case, however,
is not whether a defendant is generally entitled to counsel at a first appearance. Rather, the
question here is whether a motion for discovery – a request that typically takes places at a
later stage in the prosecution when the defendant’s lawyer is present – is a critical stage
when it occurs at the first hearing. The Supreme Court has held that whether a proceeding
is a critical stage that requires the presence of defense counsel is a separate inquiry from
whether a defendant’s right to counsel has attached. Rothgery, 554 U.S. at 211-12.

8
because the photographs taken during the physical examination were the only independent
evidence that corroborated the victim’s testimony. Zaldivar-Proenza asks us to recognize
a new rule: that any hearing where the State makes a discovery request to obtain transitory
evidence from a defendant’s body during a criminal prosecution is a critical stage in the
proceedings.
Zaldivar-Proenza first argues that the State’s discovery motion was a critical stage
because he “needed the presence of counsel to challenge and prevent the taking of the
photographs of his body.” Zaldivar-Proenza argues that this case is like U.S. v. Wade, in
which the United States Supreme Court held that a pretrial in-person lineup is a critical
stage because it presents “grave potential for prejudice . . . which may not be capable of
reconstruction at trial.” 388 U.S. at 236. The Supreme Court noted the particular dangers
of pre-trial lineups including “numerous instances of suggestive procedures” that occur
with pretrial lineups, id. at 233, and the “dangers inherent in eyewitness identification and
the suggestibility inherent in the context of the pretrial identification.” Id. at 235. But in
Wade, the Supreme Court also noted that a pretrial lineup is distinct from other preparatory
steps in the government’s gathering of evidence to use against a defendant. Id. at 227. This
is because in many other circumstances where the government is gathering evidence:
[k]nowledge of the techniques of science and technology is sufficiently
available, and the variables in techniques few enough, that the accused has
the opportunity for a meaningful confrontation of the Government's case at
trial through the ordinary processes of cross-examination of the
Government's expert witnesses and the presentation of the evidence of his
own experts.

Id. at 227‒28.

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The State argues that the facts here are not like Wade, but are similar to Gilbert v.
California. 388 U.S. 263 (1967). In Gilbert, the United States Supreme Court analyzed
whether a handwriting sample taken from a defendant during a pre-indictment police
interrogation was a critical stage of the criminal proceeding that required the presence of
defense counsel. Id. at 266‒67. The Supreme Court reasoned that “[i]f, for some reason,
an unrepresentative exemplar is taken, this can be brought out and corrected through the
adversary process at trial since the accused can make an unlimited number of additional
exemplars for analysis and comparison by government and defense handwriting experts.”
Id. at 267. The Supreme Court noted that, like blood and DNA samples, the defendant has
an opportunity to cross-examine witnesses and present evidence at trial regarding the
taking of the evidence. Id. at 267. Ultimately, the Supreme Court concluded that the taking
of writing exemplars is not a critical stage in a criminal proceeding because “there is
minimal risk that the absence of counsel might derogate from [a defendant’s] right to a fair
trial.” Id.
We agree that Zaldivar-Proenza’s situation is analogous to Gilbert and
distinguishable from Wade. There was no “grave potential for prejudice” in the taking of
the photographs that would prevent Zaldivar-Proenza’s lawyer from effectively
representing him at trial. Zaldivar-Proenza points to nothing in the process of taking
photographs that raises the same kind of inherent dangers that the Suprem e Court found
concerning in Wade. Indeed, Zaldivar-Proenza does not assert that the presence of counsel
was required during the taking of the photographs, but only at the hearing requesting that

10
the photographs be taken.3 Rather, like in Gilbert, if there was any question regarding the
authenticity of the photographs, how the photographs were taken, or whether the
photographs were accurate depictions of the scratches, the relevant challenges could have
been made during cross-examination or in a motion to suppress. In addition, Zaldivar-
Proenza could have hired an expert witness to testify regarding the nature of the scratches
and photographs.
Zaldivar-Proenza also contends that his case is like Coleman v. Alabama, 399 U.S.
1 (1970). There, the United States Supreme Court found that the preliminary hearing at
issue in the case was a critical stage of the proceeding. Id. at 9‒10. The Court concluded
that “the guiding hand of counsel at the preliminary hearing” in that case was “essential to
protect the indigent accused against an erroneous or improper prosecution.” Id. at 9. In
explaining its conclusion, the C ourt listed a number of justifications, including that the
preliminary hearing allows for cross-examination of witnesses, which affords “trained
counsel” the important opportunity to “ more effectively discover the case the State has

3 For this reason, Zaldivar-Proenza’s argument that “[u]nlike fingerprints, blood, and
DNA, which can be preserved for later inspection and do not change, scratches are
ephemeral” and, as a result, “accurate reconstruction” of the scratches is not possible in his
situation is misplaced. Indeed, it is precisely the transitory nature of the scratches on
Zaldivar-Proenza’s arm in this case that dictated that the photographs could not be taken
later and the photographs themselves preserve more permanently the images of the
scratches. See Ash, 413 U.S. at 316 (“If accurate reconstruction is possible, the risks
inherent in any confrontation still remain, but the opportunity to cure defects at trial causes
the confrontation to cease to be ‘critical.’ ”). In making this argument, Zaldivar-P roenza
is attempting to bootstrap his critical stage analysis that counsel is needed in court at any
hearing where a discovery motion is made into a different argument for earlier appointment
of counsel. Whatever the pros and cons of earlier appointment of counsel, that question is
not raised in this case.

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against his client.” Id. The court also noted that the preliminary hearing in Coleman
included consideration of complicated legal issues that have immediate impac t or
consequences that are difficult to challenge later, like the need for an early psychiatric
examination, bail, and the propriety of a grand jury. See id. at 8‒9. In such circumstances,
“counsel can also be influential . . . in making effective arguments for the accused.” Id. at
9.
Zaldivar-Proenza’s situation is distinguishable from Coleman because no evidence
was presented, no witnesses testified at his first appearance, and, accordingly, there was no
cross-examination of witnesses. It is true that after the State argued the discovery motion,
Zaldivar-Proenza told the district court about an alternate cause for the scratches, but the
district court, properly and promptly , stopped him from speaking further in order to
preserve his right against self-incrimination. Nothing occurred when the motion to take
the photographs was made that would require the “guiding hand” of counsel. See id. at 9.
We disagree that the presence of Zaldivar-Proenza’s attorney “would have helped
her better prepare for trial by learning about the state’s evidence early on and would have
increased the attorney’s effectiveness at trial. ” Zaldivar-Proenza vaguely argues that the
presence of his attorney would have “meant that trial-like confrontations would have been
made.” However, a critical stage occurs when there are trial-like confrontations, not when,
if present, a defense attorney could make trial like confrontations.
Zaldivar-Proenza further contends that if his counsel had been present when the
discovery motion was made, she could have “mounted several effective challenges to the
state’s motion to photograph [his] body ” and prevented the photographs from ever being

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taken. But Minn. R. Crim. P. 9.02, subd. 2(e), allows the district court to “order a defendant
to . . . [p]ose for photographs not involving re -enactment of a scene” so long as the order
is subject to constitutional limitations.
Zaldivar-Proenza and the dissent assert that his attorney could have argued that the
photographs would not have materially aided the State, and that the scratches could have
been caused by another source. But those are arguments that could just as readily be made
at an evidentiary hearing or through a motion to suppress. Indeed, at trial, Zaldivar-Proenza
argued his theory that the scratches came not from L.P.S. but from barbed wire fencing.
His attorney’s absence did not hinder Zaldivar-Proenza “in making effective arguments for
the accused” and it did not prevent her from fully presenting this argument at trial. See
Coleman, 399 U.S. at 9.
Finally, Zaldivar-Proenza argues his attorney could have asked that the State’s
discovery motion be deferred to a probable cause hearing. The whole point of the early
discovery motion, however, was that the scratch marks were transitory and fading. Further,
there was nothing about the taking of the photographs that prevented his attorney from
filing a probable cause motion after the photographs were taken. Unlike Coleman, the
attorney’s presence here was not “essential to protect the indigent accused against an
erroneous or improper prosecution.” Id.
Zaldivar-Proenza argues that if his attorney had been present, she could have argued
that the State failed to provide proper notice. While that may be true, the lack of notice is
a straightforward legal argument. The absence of counsel at the first appearance when the
discovery motion was made did not result in Zaldivar-Proenza losing a meaningful chance

13
to make precisely such argument later in the proceedings. In fact, Zaldivar-Proenza made
an unsuccessful motion to suppress based precisely on lack of notice grounds. In State v.
Dye, the State filed a Rule 9.02 motion in order to obtain samples of hair and saliva and
failed to give defense counsel notice. 333 N.W.2d 642, 644 (Minn. 1983). We determined
that although it was error for the State not to provide proper notice, the defendant was not
prejudiced. Id. We reasoned that “unlike a lineup where the presence of defense counsel
is usually necessary to help insure that it is conducted fairly, the taking of body samples is
not the sort of procedure where the attorney can play such a role.” Id. Likewise, the taking
of photographs of Zaldivar-Proenza’s arm was not a trial-like confrontation. He had the
opportunity to move to suppress the photographs before trial and to mount a defense during
the trial.
We hold that the State’s discovery motion at Zaldivar-Proenza’s first appearance
seeking to photograph transitory scratches on Zaldivar-Proenza’s arms was not a critical
stage.4
CONCLUSION
For the foregoing reasons, we affirm the decision of the court of appeals.
Affirmed.

4 To be clear, we do not hold that a Rule 9.02 discovery motion can never be a critical
stage of a proceeding; only that in this instance it was not.

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D I S S E N T
HUDSON, Justice (dissenting).
I respectfully dissent. Zaldivar-Proenza asks our court to adopt the following
narrow rule of law: a hearing on a prosecutor’s discovery motion under Minn. R. Crim. P.
9.02, subd. 2, is a “critical stage” of a criminal proceeding that requires the presence of
counsel when the State seeks to obtain evidence of a transitory nature from the defendant’s
body. In my view, a defendant’s Sixth Amendment right to counsel commands such a rule.
When the State invoked Minn. R. Crim. P. 9.02, subd. 2, to obtain evidence from Zaldivar-
Proenza’s body, it engaged in a trial-like confrontation and presented a legal problem, one
that Zaldivar-Proenza, a non-English-speaking layperson, was ill-equipped to understand
without the aid of counsel. Because these circumstances amount to a critical stage, the
absence of counsel violated Zaldivar-Proenza’s Sixth Amendment right and I would
therefore reverse the court of appeals and remand for a new trial.
I.
A criminal defendant’s right to counsel is guaranteed by the U.S. and Minnesota
Constitutions. Minn. Const. art. I, § 6; U.S. Const. amend. VI. The right to counsel exists
to serve as a “guiding hand” to protect the criminal defendant who “lacks both the skill and
knowledge” to adequately prepare his defense. Powell v. Alabama, 287 U.S. 45, 69 (1932).
The function of counsel is to aid the “unaided layman [with] little skill in arguing the law
or in coping with an intricate procedural system.” United States v. Ash, 413 U.S. 300, 307
(1973). It is well established that a defendant is entitled to the assistance of counsel not
only during the trial itself, but “at all ‘critical’ stages of the criminal proceedings.” Montejo

D-2
v. Louisiana, 556 U.S. 778, 786 (2009). Indeed, the United States Supreme Court has noted
that “the period from arraignment to trial [is] perhaps the most critical period of the
proceedings . . . , during which the accused requires the guiding hand of counsel . . . if the
guarantee is not to prove an empty right.” United States v. Wade, 388 U.S. 218, 225 (1967)
(internal citations omitted) (internal quotation marks omitted).
A “critical stage” is defined as “those pretrial procedures that would impair defense
on the merits if the accused is required to proceed without counsel.” Gerstein v. Pugh, 420 U.S. 103, 122 (1975). Critical stages involve “proceedings between an individual and
agents of the State . . . that amount to trial-like confrontations, at which counsel would help
the accused in coping with legal problems or . . . meeting his adversary.” Rothgery v.
Gillespie Cnty., 554 U.S. 191, 212 n.16 (2008) (internal citations omitted) (internal
quotation marks omitted). “It is central to that principle that in addition to counsel’s
presence at trial, the accused is guaranteed that he need not stand alone against the State at
any stage of the prosecution, formal or informal, in court or out, where counsel’s absence
might derogate from the accused’s right to a fair trial.” Wade, 388 U.S. at 226 (internal
footnote omitted).
Therefore, a critical stage is best understood as a pretrial confrontation that, when
occurring without the aid of counsel, “derogate[s] from the accused’s right to a fair trial.”
Id. It is incumbent on our court to “scrutinize any pretrial confrontation of the accused to
determine whether the presence of his counsel is necessary to preserve the defendant’s
basic right to a fair trial.” Id. at 227. Specifically, we must consider “whether confrontation

D-3
with counsel at trial can serve as a substitute for counsel at the pretrial confrontation.” Ash,
413 U.S. at 316.
A.
The majority concludes that a hearing on a prosecutor’s discovery motion under
Minn. R. Crim. P. 9.02, subd. 2, to obtain evidence of a transitory nature from a defendant’s
body is not a critical stage of the criminal proceeding that triggers a defendant’s Sixth
Amendment right to counsel. I disagree. Given the specific nature of transitory evidence
on a person’s body, any subsequent confrontation by defense counsel in the form of a
motion to suppress or cross-examination is not an adequate substitute for the presence of
counsel during the discovery motion hearing. I reach this conclusion for two reasons.
First, the prosecutor’s motion for discovery under Minn. R. Crim. P. 9.02 is
precisely the type of “legal problem” that is emblematic of a “critical stage” requiring the
assistance of defense counsel. There is little doubt that Zaldivar- Proenza would have
benefited greatly from the “guiding hand” of his attorney when the district court was
deciding whether to grant the State’s motion. For example, defense counsel could have
argued that the State failed to establish that the photographs would “materially aid in
determining whether [he] committed the offense charged.” Minn. R. Crim. P. 9.02, subd.
2(1). Unlike subdivision 1 of Rule 9.02, which allows a prosecutor to obtain certain
discovery items from a defendant without a court order, subdivision 2 requires the
prosecutor to file a motion requesting specific discovery items and showing that the
requested item is a necessary or material part of the investigation. This is an important

D-4
legal distinction and highlights the need for a defendant to have the assistance of counsel
when such a motion is being heard and decided by the district court.
Defense counsel could have argued that the State failed to comply with the notice
requirements of Rule 9.02, subdivision 2. 1 Id., subd. 2(1) (requiring “notice to the
defense”); id., subd. 2(2) (requiring “reasonable notice of the time and place” for the
disclosure); see also State v. Dye, 333 N.W2d 642, 644 (Minn. 1983) (“[W]e are of the
opinion that better practice as well as the wording and spirit of Rule 9.02 mandates that
notice to defense counsel shall be provided, and that it was error here not to do so.”).
Finally, defense counsel could have asked for the motion to be deferred until a
hearing was held at which the attorney could elicit testimony about the materiality of the
scratches. But these arguments were never made because Zaldivar-Proenza did not have
his attorney present during the hearing.
I agree with Zaldivar- Proenza that his case is analogous to the United States
Supreme Court’s decision in Coleman v. Alabama, 399 U.S. 1 (1970). In Coleman, the
Supreme Court concluded that a preliminary hearing is a critical stage when witnesses
testify and the district court rules on a grand jury question. Id. at 10. The majority contends
that, because the State did not call witnesses or present evidence at the hearing in this case,
Coleman is inapplicable. However, as the Supreme Court explained, a pretrial hearing is
a critical stage not only due to the presence of witnesses or the opportunity for cross-

1 Given the facts of this case, it is not clear t hat Zaldivar-Proenza or his defense
counsel were given adequate notice of the hearing. If defense counsel had been present at
the hearing, he or she could have made such an argument before the district court. But this
issue was not raised on appeal and therefore is not before us for review.

D-5
examination, but because “trained counsel can more effectively discover the case the State
has against his client” and “counsel can also be influential at the preliminary hearing in
making effective arguments for the accused on such matters as the necessity for an early
psychiatric examination or bail.” Id. at 9 (emphasis added).
Here, it seems plain that the State’s discovery motion was one “such matter[]” where
counsel could have been influential at the preliminary hearing in making effective legal
arguments on behalf of Zaldivar-Proenza. Id. The majority concludes, without explaining,
that nothing occurred at the pretrial hearing that would require the “guiding hand” of
counsel. But the fact that the district court judge had to intervene and stop Zaldivar-
Proenza from offering an alternate ca use for the scratches in order to preserve his right
against self-incrimination demonstrates exactly why the presence of counsel was so crucial.
In effect, the judge had to act as the “guiding hand” of counsel because Zaldivar- Proenza
had none. Thus, the rationale in Coleman supports the conclusion that the hearing in this
case was a critical stage that required the presence of counsel to protect Zaldivar-Proenza’s
right to a fair trial.
The second reason I conclude that Zaldivar-Proenza was entitled to have his counsel
present during the discovery motion hearing is that the absence of counsel during the
hearing meant that Zaldivar-Proenza lost the benefit of having his attorney inspect and
preserve the evidence for trial. Due to the changing physical nature of the body, the type
of evidence at issue in this case cannot be reconstructed at a later date because the body
heals and the evidence disappears. In contrast, static evidence like blood, DNA, or
handwriting samples are immutable and do not change over time. In cases where transitory

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evidence from a defendant’s body is sought pursuant to a motion under Minn. R. Crim. P.
9.02, subd. 2, there is simply no substitute for having counsel at the hearing to inspect and
preserve the evidence in order to better mount an effective defense at trial.
This conclusion is bolstered by the United States Supreme Court’s decision in
United States v. Wade, 388 U.S. 218. In Wade, the Supreme Court held that a pretrial in-
person lineup is a critical stage because it pose s “grave potential for prejudice” and “may
not be capable of reconstruction at trial.” Id. at 236. The Supreme Court explained that a
pretrial in- person lineup is distinct from “various other preparatory steps, such as
systematized or scientific analyzing of the accused’s fingerprints, blood sample, clothing,
hair, and the like” because the “[k]nowledge of the techniques of science and technology”
for collecting and analyzing this type of evidence is “sufficiently available” and “the
accused has the opportunity for a meaningful confrontation of the Government’s case at
trial through the ordinary processes of cross-examination of the Government’s expert
witnesses and the presentation of evidence of his own experts.” Id. at 227–28.
The majority reasons that Zaldivar-Proenza had sufficient opportunities to challenge
the evidence taken by the State by filing a motion to suppress and cross-examining the
State’s witnesses, or hiring an expert witness to testify about the nature of the scratches or
the quality of the photographs. The majority’s analysis, however, misses the point. It is
because of the transitory nature of the evidence that “accurate reconstruction” is not
possible and the absence of counsel at the hearing was so critical. No amount of motion
practice or cross-examination can substitute for the opportunity of his counsel to inspect

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the scratches and take her own photographs or, better yet, prevent the photographs from
being taken in the first place.
B.
The majority also contends that the United States Supreme Court’s decision in
Gilbert v. California, 388 U.S. 263 (1967), governs the outcome of this case. I disagree.
In Gilbert, the Supreme Court held that a pre-indictment police interrogation, during
which the defendant provided a handwriting sample, is not a critical stage. 388 U.S. at
267. The Supreme Court explained that the handwriting samples were not taken from the
defendant at a critical stage because the circumstances of that case presented “minimal risk
that the absence of counsel mi ght derogate from his right to a fair trial.” Id. Here, the
majority adopts this reasoning and contends that Zaldivar-Proenza’s right to a fair trial was
preserved because he had ample opportunities to challenge the authenticity and accuracy
of the photographs. But the majority’s reliance on Gilbert is misplaced for two key reasons.
First, the police interrogation that produced the handwriting samples in Gilbert
occurred before an indictment had been filed against the defendant. See id. at 267. The
State had not committed itself to prosecuting the defendant nor was the defendant faced
with a “trial-like confrontation.” See Rothgery, 554 U.S. at 212 n.16. In other words, the
pre-indictment police interrogation in Gilbert was not a critical stage of the criminal
proceeding because the criminal proceeding had not yet begun. In contrast, here there is
no doubt that the criminal proceeding against Zaldivar-Proenza was already underway
when the State filed the motion under Minn. R. Crim. P. 9.02, subd. 2, to take photographs
of the scratches on his arm. Indeed, the district court had appointed a public defender and

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set bail prior to addressing the State’s motion for the discovery. Even so, the majority
contends that the taking of photographs of a defendant’s arm does not amount to a “trial -
like confrontation.” Yet, again, the majority looks past the fact that to have the photographs
taken, the State had to invoke the rules of criminal procedure, file a discovery motion, and
make legal arguments in support of its motion. It was the filing of the discovery motion
under Minn. R. Crim. P. 9.02, subd. 2, and arguing that motion before the district court
judge that constituted a “trial-like confrontation,” not the mere taking of photographs after
the fact.
Second, the transitory nature of the evidence here is distinguishable from the static
handwriting evidence collected in Gilbert. As explained above, a motion to suppress or
cross-examination is simply not an adequate substitute for the assistance of counsel when
dealing with transitory evidence from a defendant’s body. In sum, the facts of this case are
more analogous to the post-indictment, in-person line up held to be a critical stage in Wade
than the pre-indictment collection of handwriting samples held not to be a critical stage in
Gilbert.
Finally, I acknowledge that there are practical implications of adopting the rule of
law proposed by Zaldivar-Proenza—namely, that public defenders must be present
whenever a discovery motion under Minn. R. Crim. P. 9.02, subd. 2, is addressed in court.
But at the end of the day, every Minnesotan facing criminal charges has the constitutional
right to counsel. And under the circumstances presented by this case, we should require
our district courts to promptly notify the local public defender’s office and wait until

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counsel is present before ruling on a discovery motion filed by the State. Fairness and the
integrity of our judicial system requires nothing less.
II.
Having determined that the district court’s ruling on the State’s discovery motion
under Minn. R. Crim. P. 9.02, subd. 2, is a critical stage during which Zaldivar-Proenza
was denied his right to counsel, I now turn to whether this constitutional violation requires
reversal of his conviction. To do so, we must first determine what standard of review to
apply in reviewing the error.
Zaldivar-Proenza contends that the denial of his right to counsel at a critical stage
of the criminal proceeding amounts to a structural error requiring automatic reversal.
“Generally, most constitutional errors are reviewed for harmless error.” State v. Kuhlmann,
806 N.W.2d 844, 850 (Minn. 2011). But, “there are a ‘very limited class of’ errors, referred
to as structural errors, that require automatic reversal of a conviction.” Id. at 851 (quoting
Johnson v. United States, 520 U.S. 461, 468 (1997)).
“Structural errors are defects in the constitution of the trial mechanism, which defy
analysis by ‘harmless-error’ standards.” Kuhlmann, 806 N.W.2d at 851 (internal citat ion
omitted) (internal quotation marks omitted). These type of errors produce “consequences
that are necessarily unquantifiable and indeterminate.” United States v. Gonzalez-Lopez,
548 U.S. 140, 150 (2006) (holding that a violation of the Sixth Amendment right to choice
of counsel qualified as a structural error that is not subject to harmless-error review). The
United States Supreme Court has recognized that “the total deprivation of the right to
counsel at trial” is a structural error. See Arizona v. Fulminante, 499 U.S. 279, 309 (1991).

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And while we have never directly addressed the standard of review applied to the denial of
counsel during a preliminary hearing, we have cautioned that “[o]nly a small number of
errors have been found to be structural errors.” Kuhlmann, 806 N.W.2d at 851 (listing
examples).
I am not convinced that the denial of counsel during a preliminary hearing is a
structural error. The United States Supreme Court has been clear that when the right to
counsel is denied at a critical stage in a criminal proceeding, “the test to be applied is
whether the denial of counsel at the preliminary hearing was harmless error under
Chapman v. California.” Coleman, 399 U.S. at 11; see also Wade, 388 U.S. at 242
(concluding that the defendant was denied the right to counsel at a critical stage and
remanding for further fact-finding and application of the harmless error standard).
“An error is not harmless if there is a reasonable possibility that the verdict might
have been different if the error were not committed.” State v. Ferguson, 804 N.W.2d 586,
592 (Minn. 2011) (internal citation omitted) (internal quotation marks omitted). The
burden is on the State “to show that the errors are harmless beyond a reasonable doubt by
showing that the error did not contribute to the verdict obtained.” State v. Conklin,
444 N.W.2d 268, 275 (Minn. 1989). And “[w]hen determining whether the error is
harmless, we consider all of the facts and circumstances of the case.” State v. Cannady,
727 N.W.2d 403, 409 (Minn. 2007).
Therefore, the burden is on the State to prove, in light of all the facts and
circumstances in this case, that the absence of counsel during the hearing was harmless
error beyond a reasonable doubt. In my view, the State cannot meet this burden. It is

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reasonable to conclude, based on the record, that the verdict might have been different had
Zaldivar-Proenza’s counsel been present when the district court addressed the State’s
discovery motion under Minn. R. Crim. P. 9.02, subd. 2. Most importantly, if counsel had
been present, he or she could have prevented the photographs from being taken in the first
place. Even if the district court had still sided with the State and allowed the taking of
photographs, Zaldivar-Proenza’s counsel would have been able to view the scratches in-
person, document them, and be in a better position to defend against the photographs at
trial.
This case ultimately hinged on a credibility contest between the alleged victim’s
version of events and Zaldivar-Proen za’s version of events. The photographs of the
scratches on his arms were the only piece of demonstrative evidence that corroborated the
victim’s story. Thus, the photographs played a decisive role for the jury in determining
whose story was more credible and ultimately rendering a guilty verdict against the
defendant.
Accordingly, I would hold that the denial of Zaldivar- Proenza’s right to counsel
during the preliminary hearing was not harmless error. I would therefore reverse the
decision of the court of appeals upholding his conviction and remand to the district court
for a new trial.

GILDEA, Chief Justice (dissenting).
I join in the dissent of Justice Hudson.