State of Minnesota v. Larry Joe Foster

STATE OF MINNESOTA

IN SUPREME COURT

A21-0070
A21-0583

Court of Appeals Procaccini, J.
Concurring, Gaïtas, J., Hudson, C.J.
State of Minnesota,

Respondent,

vs. Filed: April 30, 2025
Office of Appellate Courts
Larry Joe Foster,

Appellant.

________________________

Keith Ellison, Attorney General, Saint Paul, Minnesota; and

Mary F. Moriarty, Hennepin County Attorney, Adam E. Petras, Senior Assistant County
Attorney, Minneapolis, Minnesota, for respondent.

Cathryn Middlebrook, Chief Appellate Public Defender, Jenna Yauch-Erickson, Assistant
State Public Defender, Saint Paul, Minnesota, for appellant.

Barry S. Edwards, Keller Law Offices, Minneapolis, Minnesota, for amicus curiae
Minnesota Association of Criminal Defense Lawyers.

________________________

1

SYLLABUS

1. Appellant did not properly preserve the question of whether a defendant, who

has satisfied the required test to present an alternative perpetrator defense, is entitled to call

the alternative perpetrator to appear before the jury for a nontestimonial purpose.

2. When a defendant has satisfied the required test to present an alternative

perpetrator defense, a district court has discretion under the ordinary rules of evidence to

allow the defendant to call the alternative perpetrator as a trial witness, even when it is

known that the alternative perpetrator will invoke their right against self-incrimination in

the presence of the jury.

3. The district court did not abuse its discretion when it denied appellant’s

request to call an alternative perpetrator to the witness stand based on needless presentation

of cumulative evidence.

Affirmed.

OPINION

PROCACCINI, Justice.

This case presents a narrow question: When a defendant has satisfied the

requirements necessary to present an alternative perpetrator defense, does the district court

have discretion to allow the defendant to call the alleged alternative perpetrator as a

witness when it is known that the alternative perpetrator will invoke the right against

self-incrimination in the presence of the jury?

The State charged appellant Larry Joe Foster with second-degree intentional murder

for the death of Daniel Bradley. Foster asserted that another person, R.J., committed the

2

murder. The district court determined that Foster had met the requirements set out in State

v. Hawkins, 260 N.W.2d 150 (Minn. 1977), to present an alternative perpetrator defense. 1

Foster identified the evidence that he planned to introduce in support of his alternative

perpetrator defense, including his own eyewitness testimony, evidence of R.J.’s criminal

history, and photos of R.J. He also stated that he intended to call R.J. as a trial witness.

R.J. invoked his right against self-incrimination on the stand before trial began. Foster

requested that R.J. be required to invoke the right on the witness stand in the presence of

the jury. The district court denied the request. In doing so, the district court acknowledged

a lack of clarity in the law and relied on opinions from other contexts, which state that an

invocation of the right against self-incrimination lacks probative value. The district court

also provided a second, independent basis for its denial, reasoning that an invocation by

R.J. would be cumulative to the other evidence that Foster planned to introduce in support

of his alternative perpetrator defense.

Foster requested, in the alternative, to call R.J. to appear for a nontestimonial

purpose—to allow the jury to observe R.J.’s physical characteristics and gait and compare

1
In State v. Hawkins, we adopted a two-step test for the admissibility of alternative
perpetrator evidence. 260 N.W.2d at 159; see State v. Carbo, 6 N.W.3d 114, 123
(Minn. 2024) (discussing the Hawkins test). The first step requires the defendant to put
forth “evidence having an inherent tendency to connect such other person with the actual
commission of the crime.” Hawkins, 260 N.W.2d at 159 (citation omitted) (internal
quotation marks omitted). The second step requires the district court to consider whether
the evidence is admissible under the “ordinary rules of evidence.” State v. Jenkins,
782 N.W.2d 211, 224 (Minn. 2010). If both steps are satisfied, as in this case, the defendant
may “introduce evidence of a motive of a third person to commit the crime, threats by the
third person, or other miscellaneous facts which would tend to prove the third person
committed the act.” Hawkins, 260 N.W.2d at 159 (footnotes omitted).

3

them to security camera footage of a man who was at the scene on the day of Bradley’s

murder. The district court reserved its ruling on Foster’s alternative request, and Foster

did not raise it again. A jury found Foster guilty of second-degree murder.

Foster appealed, asserting that the district court violated his constitutional rights to

present a complete defense and to compulsory process by denying his request to call R.J.

to the witness stand. The court of appeals affirmed Foster’s conviction, concluding that he

had no constitutional right to call R.J. to the witness stand only for R.J. to assert his right

against self-incrimination.

Foster’s first argument to our court—that the district court abused its discretion

when it did not grant his request to call R.J. to appear before the jury for a nontestimonial

purpose (to allow the jury to observe his physical characteristics and his gait)—was not

properly preserved below and is forfeited.

As to the question that is properly before us, we conclude that an alternative

perpetrator’s invocation of their right against compelled self-incrimination on the witness

stand may have probative value in some circumstances. As a result, we hold that when a

defendant has satisfied the required test to present an alternative perpetrator defense, the

district court has discretion, subject to the ordinary rules of evidence, to allow the defendant

to call the alternative perpetrator to the witness stand, even when it is known that the

alternative perpetrator will invoke their right against compelled self-incrimination. 2 This

2
To be clear, the “right against self-incrimination” as used throughout this opinion
refers to the right against compelled self-incrimination. As we explained in State v. Borg,
“[w]hen the government does nothing to compel a person who is not in custody to speak,”

4

rule applies even if the defendant’s sole purpose is to elicit an invocation of the right against

self-incrimination.

Although we hold that the district court’s first basis for denying R.J.’s motion relied

on a mistaken view of the law, we conclude that the district court did not abuse its discretion

because its second basis—grounded in the ordinary rules of evidence—provided an

adequate independent basis for the ruling. Accordingly, we affirm the decision of the court

of appeals, but on different grounds.

FACTS

Just after midnight on September 2, 2019, firefighters responded to a call about a

fire at Daniel Bradley’s Minneapolis residence and found him deceased on the floor of his

living room. No one else was in the home when Bradley’s body was discovered. Based

on injuries to Bradley’s body, investigators determined that he had been murdered.

Investigators located a trail of blood that began in the room where Bradley’s body was

found. The trail continued out the back door, through the backyard, over Bradley’s

backyard fence, into a neighbor’s yard, and along a sidewalk in front of Bradley’s house.

Forensic scientists later determined that some of the blood matched Foster’s DNA profile.

Around 1:00 a.m., police received a call about an abandoned truck at a Saint Paul

boat landing. The truck belonged to Foster. The truck’s interior contained a significant

their voluntary decision to do so does not implicate the right against self-incrimination.
806 N.W.2d 535, 543 (Minn. 2011); see also State v. Heinonen, 909 N.W.2d 584, 589
(Minn. 2018) (stating that the right against self-incrimination “applies only ‘when the
accused is compelled to make a testimonial communication that is incriminating’ ”
(alteration in original) (quoting Fisher v. United States, 425 U.S. 391, 408 (1976))).

5

amount of blood, and police found a blood-soaked shirt and other clothes in the truck bed.

Forensic scientists determined that the shirt contained blood matching both Bradley’s and

Foster’s DNA profiles.

Police officers arrested Foster nine days after finding his truck. When he was

arrested, Foster had cuts and abrasions on his hands, legs, and shoulders, and he wore a

watch stained with dried blood. The blood on the watch matched both Bradley’s and

Foster’s DNA profiles.

The State charged Foster with second-degree intentional murder for Bradley’s

death. Foster admitted to being in Bradley’s home at the time of the murder, but Foster

alleged that R.J. committed the murder. Foster filed a motion to raise this alternative

perpetrator defense at trial. In support of his motion, Foster provided the district court with

a list of supporting evidence that he planned to introduce to show that R.J. was the actual

perpetrator, including Foster’s own eyewitness testimony, evidence of R.J.’s criminal

history, and photos of R.J. from government records. The district court granted Foster’s

motion to raise this alternative perpetrator defense. Foster also subpoenaed R.J. to appear

as a witness. Before trial, R.J. testified under oath and outside the presence of the jury that

he would invoke the right against self-incrimination if called to the witness stand in the

presence of the jury. Foster argued that R.J.’s assertion of his intended invocation was

untimely because he had not yet been asked to provide testimony that might incriminate

him.

In considering Foster’s motion to call R.J. to the witness stand, the district court first

acknowledged a lack of clarity in the law related to testimony by witnesses who intend to

6

invoke their right against self-incrimination. The district court relied on case law from

another context, which states that invocation of the right against self-incrimination has no

evidentiary value. The court denied the motion because R.J. had already testified that he

would invoke the right against self-incrimination if called to the witness stand in the

presence of the jury. Alternatively, the court explained that an invocation by R.J. would

be cumulative to the other evidence that Foster planned to introduce in support of his

alternative perpetrator defense: “[A]lso in this case, all the things that you listed off that

you were going to rely on to make the argument that [R.J.] was the actual perpetrator,

they’re still there.”

Foster requested, in the alternative, to call R.J. to appear as a witness so that the jury

could observe his physical characteristics and “distinct gait,” which Foster alleged were

“identical to [a] man [seen on security camera footage] walking around in and out of

Mr. Bradley’s house the day of the murder.” Foster argued that the right against

self-incrimination did not shield R.J. from appearing before the jury because R.J.’s physical

characteristics and his gait were not testimonial in nature. Foster’s request was presented

as conditional, premised on the State challenging R.J.’s identity. 3 The district court did not

3
Foster’s attorney stated: “If the State tries to attack [the] identification [of R.J. in
the video footage], we would ask to call [R.J.] for the purpose of the jury identifying him,
not just by how his appearance is in front of them—height, complexion, appearance—but
also to see . . . [his] very distinct gait . . . . So there is some non-testimonial purposes we
would want to bring him in before the jury if the State was to undermine or question or
attack the veracity of the identification of him. . . . In the event they attack the veracity of
him being the person in the video and there’s some eyes—you know, laying their on [sic]
eyes on not only himself but seeing how he walks, those are non-testimonial things that
would become relevant if and when the State—I’m not sure they’re going to—attacks the
identification of him on the video by other witnesses.” (Emphasis added.)

7

rule on Foster’s request but instead left the question open, stating that it would “have to see

how everything plays out.”

At trial, the State called several witnesses who testified about the physical evidence

found at the scene, which included Foster’s blood and fingerprints at Bradley’s house as

well as the blood found in Foster’s truck and on his watch. The State introduced security

video footage that placed both Foster and the man Foster identified as R.J. at Bradley’s

house several times on the day of the murder, though R.J. can be seen departing from the

house at 4:35 p.m. Foster testified that he was at Bradley’s house several times on the day

of the murder, including when the murder took place, but he alleged that he witnessed R.J.

kill Bradley. Throughout trial, the State did not challenge Foster’s assertions that R.J. was

the man seen in the video footage, and Foster did not renew his request to call R.J. for a

nontestimonial purpose. In its closing argument, the State took aim at Foster’s version of

events, emphasizing the lack of evidence tying R.J. to the murder or to Bradley’s home

during the timeframe when Bradley was murdered.

The jury found Foster guilty of second-degree intentional murder. The district court

sentenced Foster to 415 months in prison. Foster appealed his conviction. Relevant here,

Foster argued that the district court, by preventing him from calling R.J. to the stand at

trial, violated his constitutional rights to compulsory process, due process, and a fair trial.

The court of appeals affirmed Foster’s conviction. Relying on State v. Moose,

266 N.W.2d 521, 525 (Minn. 1978), the court of appeals asserted that a defendant may

never call a witness to the stand if the defendant knows that the witness has invoked or will

invoke the right against self-incrimination. Accordingly, the court of appeals concluded

8

that “the district court did not abuse its discretion by refusing to compel [R.J.] to take the

stand for the purpose of invoking his right against self-incrimination in front of the jury.”

State v. Foster, Nos. A21-0070, A21-0583, 2024 WL 74152, at *6 (Minn. App. Jan. 8,

2024). 4

As to the issue of whether Foster could call R.J. for a nontestimonial purpose, the

court of appeals questioned whether the nontestimonial-purpose issue was properly before

it because Foster had not renewed his request to call R.J. for a nontestimonial purpose and

the district court never definitively ruled on that question. The court of appeals ultimately

held that the district court appropriately exercised its discretion by not granting Foster’s

alternative motion to call R.J. for a nontestimonial purpose, pointing to the lack of authority

supporting Foster’s argument that a defendant is entitled “to compel a third party to appear

at a criminal trial solely for the purpose of allowing the jury to observe that party’s physical

characteristics.” Id. at *8.

Foster filed a petition for review, which we granted.

ANALYSIS

We begin by addressing whether Foster properly preserved the argument that the

district court abused its discretion when it did not grant his motion to call R.J. to appear

before the jury for the nontestimonial purpose of showing R.J.’s physical characteristics to

4
Foster also appealed a restitution order, and the court of appeals consolidated that
appeal with his direct appeal. At Foster’s request, the court of appeals stayed his direct
appeal to allow him to pursue postconviction relief. After the district court denied Foster’s
petition for postconviction relief, the court of appeals reinstated his appeal. The restitution
order is not before us.

9

the jury. We then address whether the district court abused its discretion when it denied

Foster’s request to call R.J. to the witness stand when Foster knew that R.J. would invoke

the right against self-incrimination. Our analysis of this second issue presents two

questions. We first consider whether the court of appeals correctly determined that our

decision in State v. Moose established a categorical rule preventing a defendant from

calling a witness to the stand if the defendant knows that the witness will invoke the right

against self-incrimination. Because we conclude that Moose did not establish such a rule,

we then consider a second question: whether—given a defendant’s constitutional rights to

compulsory process and to present a complete defense—a district court must have

discretion to permit a defendant to call an alternative perpetrator to the witness stand when

it is known that the alternative perpetrator will invoke the right against self-incrimination

in the presence of the jury. Finally, we apply our holding that district courts must have

such discretion, and we explain why the district court did not abuse its discretion in this

case.

I.

We first address Foster’s argument that the district court abused its discretion when

it did not grant his request to call R.J. to appear before the jury for a nontestimonial

purpose 5—to allow the jury to observe his physical characteristics and his gait. The State

argues that this issue is not properly before us. We agree.

5
A testimonial act “ ‘explicitly or implicitly[] relate[s] a factual assertion or
disclose[s] information.’ ” Heinonen, 909 N.W.2d at 593 (quoting Doe v. United States, 487 U.S. 201, 210 (1988)). An act is nontestimonial when it “provides real or physical

10

Foster challenges a ruling that was never made. The district court did not deny

Foster’s request to call R.J. for the purpose of showing to the jury his physical

characteristics and his gait. Instead, it reserved that issue. Foster cannot challenge an

alleged ruling that he claims prevented him from calling R.J. to appear for a nontestimonial

purpose because “the court made no such ruling.” See, e.g., State v. Reed, 737 N.W.2d

572, 588–89 (Minn. 2007) (stating that the appellant, who sought to challenge an alleged

ruling by the district court on the admissibility of a prior conviction, “[could not] challenge

the district court’s ruling . . . as the court made no such ruling”).

As to the district court’s reservation of its decision, Foster did not appeal that issue

to the court of appeals or this court. We typically do not address issues that were not raised

in the court of appeals. State v. Myhre, 875 N.W.2d 799, 806–07 (Minn. 2016). We

therefore conclude that Foster forfeited any appellate relief based on a challenge to the

district court’s reservation of its decision when he failed to raise that issue in the court of

appeals or this court. In sum, Foster failed to properly preserve the question of whether a

defendant who has satisfied the requirements to present an alternative perpetrator defense

is entitled to call the alternative perpetrator to appear before the jury for a nontestimonial

evidence that is used solely to measure . . . physical properties, or to exhibit . . . physical
characteristics”—for example, when a defendant “exhibit[s] himself and present[s] his
features so that the police or a jury may compare his features with other evidence of the
defendant’s guilt.” State v. Diamond, 905 N.W.2d 870, 874 (Minn. 2018) (ellipses in
original) (citations omitted) (internal quotation marks omitted); see also Schmerber v.
California, 384 U.S. 757, 764 (1966) (providing examples of nontestimonial acts).

11

purpose, because the district court never ruled on that issue, and Foster failed to challenge

the district court’s reservation of the issue in the court of appeals or this court. 6

II.

Concluding that Foster failed to properly preserve the question of whether he was

entitled to call the alternative perpetrator to appear for a nontestimonial purpose does not

end our analysis. We also need to decide whether the district court abused its discretion

by denying Foster’s request to call R.J. to the witness stand when Foster knew that R.J.

would invoke his right against self-incrimination. This question involves the interplay

between three constitutional rights: Foster’s rights to compulsory process and to present a

complete defense and R.J.’s right against self-incrimination.

The Minnesota Constitution and the United States Constitution confer upon criminal

defendants the rights to compulsory process and to present a complete defense. Minn.

6
Even if we were to treat Foster’s challenge on appeal as one to the district court’s
reservation of its ruling, he did not object to the reservation at trial and he did not reattempt
to call R.J. to appear for a nontestimonial purpose after the district court reserved its ruling.
“When a defendant fails to object at trial,” they are “generally preclude[d] [from] appellate
relief” unless the district court committed plain error. State v. Lilienthal, 889 N.W.2d 780,
784 (Minn. 2017); see Reed, 737 N.W.2d at 589 (applying plain error analysis when a
defendant did not object to the district court’s reservation of its ruling).
The district court did not plainly err by reserving its ruling on whether Foster was
entitled to call R.J. to allow the jury to observe his physical characteristics and his gait.
Any alleged error by the district court was not plain. State v. Ramey, 721 N.W.2d 294, 302
(Minn. 2006) (“An error is plain if,” at the time of the appeal, “it was clear or obvious,”
which requires that “the error contravenes case law, a rule, or a standard of conduct.”
(citations omitted) (internal quotation marks omitted)). There is no binding case law, rule,
or standard of conduct establishing that a defendant is unconditionally entitled to compel
an alternative perpetrator to appear for a nontestimonial purpose. It was reasonable for the
district court to reserve its ruling to see how the trial unfolded and whether the State called
the identification of R.J. into question.

12

Const. art. I, § 6 (“In all criminal prosecutions the accused shall enjoy the right . . . to have

compulsory process for obtaining witnesses in his favor . . . .”); U.S. Const. amend. VI

(applicable to the states through the Fourteenth Amendment as stated in Washington v.

Texas, 388 U.S. 14, 18–19 (1967)); U.S. Const. amend. XIV; 7 State v. Beecroft,

813 N.W.2d 814, 838–39 (Minn. 2012) (recognizing the right to a complete defense under

Article I, Section 7, of the Minnesota Constitution and the Fourteenth Amendment to the

United States Constitution).

Though the right to compulsory process generally means that a defendant is

permitted to call witnesses in support of their defense, “the constitutional protection of

compulsory process is not an absolute guarantee that every witness a defendant seeks must

testify.” Burrell v. State, 858 N.W.2d 779, 786 (Minn. 2015). This is because the right is

tempered by the operation of established rules of evidence and procedure. As we explained

in Burrell, “to establish a violation of the . . . right to compulsory process, a defendant must

at least make some plausible showing of how [the] testimony would have been both

material and favorable to [their] defense.” Id. (first alteration in original) (citation omitted)

(internal quotation marks omitted).

Neither we nor the United States Supreme Court have had significant opportunities

to define the contours of the right to compulsory process. See Pennsylvania v. Ritchie,

7
We have generally not distinguished between the rights to compulsory process in
the Minnesota and United States Constitutions. See Burrell v. State, 858 N.W.2d 779, 786
(Minn. 2015). Because there is no binding federal case law applicable to the issue raised
here, we have no occasion to determine whether the state and federal rights may differ in
this context.

13

480 U.S. 39, 55 (1987). This is in part because claims involving the right to compulsory

process are more often analyzed under the broader right to present a complete defense.

Id. at 56; see also Peter Westen, The Compulsory Process Clause, 73 Mich. L. Rev. 71,

120 (1974) (opining that while the Supreme Court has made clear that it “recognizes a

comprehensive right of the accused to present a defense through witnesses,” it “vacillat[es]

between compulsory process and due process as a ground for its decisions”).

“The right of a defendant to present a complete defense . . . is guaranteed by the Due

Process Clause of both the United States Constitution and the Minnesota Constitution.” 8

Beecroft, 813 N.W.2d at 838–39 (citing U.S. Const. amend. XIV; Minn. Const. art. I, § 7).

Like the right to compulsory process, the right to present a complete defense lacks a clear

definition in both our case law and that of the United States Supreme Court. The right

tends to be articulated in broad terms. 9 We have stated that the right to present a complete

8
We have generally not distinguished between the rights to present a complete
defense under the Minnesota Constitution and the United States Constitution. See Carbo,
6 N.W.3d at 123 (describing the state and federal constitutional rights to present a complete
defense as coextensive). As with the right to compulsory process, because there is no
binding federal case law applicable to the issue raised here, we have no occasion to
determine whether the state and federal rights may differ in this context.
9
See, e.g., State v. Profit, 591 N.W.2d 451, 463 (Minn. 1999) (stating that “[e]very
criminal defendant has the right to be treated with fundamental fairness and afforded a
meaningful opportunity to present a complete defense” (citation omitted) (internal
quotation marks omitted)); California v. Trombetta, 467 U.S. 479, 485 (1984) (providing
that “[u]nder the Due Process Clause of the Fourteenth Amendment, criminal prosecutions
must comport with prevailing notions of fundamental fairness” and that the Court “ha[s]
long interpreted this standard of fairness to require that criminal defendants be afforded a
meaningful opportunity to present a complete defense”); Holmes v. South Carolina, 547 U.S. 319, 319 (2006) (restating that “the Constitution guarantees criminal defendants
‘a meaningful opportunity to present a complete defense’ ” (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986))).

14

defense “is comprised, at a minimum, of the right to examine the witnesses against the

defendant, to offer testimony, and to be represented by counsel.” State v. Reese,

692 N.W.2d 736, 740 (Minn. 2005); see also Beecroft, 813 N.W.2d at 839 (stating that

“[t]he right to offer the testimony of witnesses, and to compel their attendance, if necessary,

is in plain terms the right to present a defense, . . . [which is] to present the defendant’s

version of the facts . . . to the jury so it may decide where the truth lies” (second ellipses in

original) (citation omitted) (internal quotation marks omitted)); Chambers v. Mississippi¸

410 U.S. 284, 294, 302 (1973) (declaring that “[f]ew rights are more fundamental than that

of an accused to present witnesses in his own defense” and providing that “[t]he rights to

confront and cross-examine witnesses and to call witnesses in one’s own behalf have long

been recognized as essential to due process”). And although we need not conclusively

define every contour of the right to present a complete defense in this case, we reiterate

that the right is grounded in principles of “fundamental fairness” and includes the “right to

present evidence.” State v. Richards, 495 N.W.2d 187, 191 (Minn. 1992) (citing

California v. Trombetta, 467 U.S. 479, 485 (1984)); State v. Swaney, 787 N.W.2d 541, 556

(Minn. 2010).

But, as with the right to compulsory process, the right to present a complete defense

“is not absolute.” State v. Carbo, 6 N.W.3d 114, 123 (Minn. 2024) (citation omitted)

(internal quotation marks omitted). At times, the right to present a complete defense may

“bow to accommodate other legitimate interests in the criminal trial process.” United

States v. Scheffer, 523 U.S. 303, 308 (1998) (citation omitted) (internal quotation marks

omitted). The right “yields to the application of an evidentiary rule unless the rule

15

‘infringe[s] upon a weighty interest of the accused and [is] arbitrary or disproportionate to

the purposes [the rule is] designed to serve.’ ” State v. Pass, 832 N.W.2d 836, 841–42

(Minn. 2013) (alterations in original) (quoting Holmes v. South Carolina, 547 U.S. 319,

324–25 (2006)); see also Richards, 495 N.W.2d at 195 (explaining that in exercising the

right to present a defense, a defendant must still “ ‘comply with established rules of

procedure and evidence designed to assure both fairness and reliability in the ascertainment

of guilt and innocence’ ” (quoting Chambers, 410 U.S. at 302)). The right to present a

complete defense is subject to rules of evidence designed to exclude “unfairly prejudicial,

confusing, or misleading evidence.” Pass, 832 N.W.2d at 841–42. To that end, Minnesota

Rules of Evidence 402 and 403 are “unquestionably constitutional” in the context of a due

process challenge. Id. (citation omitted) (internal quotation marks omitted) (concerning

Rule 403); Loving v. State, 891 N.W.2d 638, 646 n.1 (Minn. 2017) (concerning Rule 402);

see also Holmes, 547 U.S. at 326–27.

The Minnesota Constitution and the United States Constitution also provide that

“[n]o person shall . . . be compelled in any criminal case to be a witness against himself.”

Minn. Const. art. I, § 7; U.S. Const. amend. V (applicable to the states through the

Fourteenth Amendment as stated in Malloy v. Hogan, 378 U.S. 1, 6 (1964)); U.S. Const.

amend. XIV. This constitutional right “applies only ‘when the accused is compelled to

make a testimonial communication that is incriminating.’ ” State v. Heinonen, 909 N.W.2d

584, 589 (Minn. 2018) (alteration in original) (quoting Fisher v. United States, 425 U.S.

391, 408 (1976)). Although “a witness who desires the protection of the privilege [against

self-incrimination] . . . must claim it at the time he relies on it,” Salinas v. Texas, 570 U.S.

16

178, 183 (2013) (citation omitted) (internal quotation marks omitted), we have never

decided whether a district court must require a witness to take the stand to invoke their

right against self-incrimination. 10

With these three key constitutional rights in mind, we address the State’s contention

that, as a matter of law, Foster could not call R.J. to the witness stand in the presence of

the jury because Foster knew of R.J.’s intent to invoke his right against self-incrimination.

We review the district court’s evidentiary ruling for an abuse of discretion “even when a

defendant alleges that his constitutional rights were violated.” State v. Profit, 591 N.W.2d

451, 463 (Minn. 1999). “A district court abuses its discretion when its decision is based

on an erroneous view of the law or is against logic and the facts in the record.” State v.

Hallmark, 927 N.W.2d 281, 291 (Minn. 2019) (citation omitted) (internal quotation marks

omitted); see, e.g., State v. Obeta, 796 N.W.2d 282, 294 (Minn. 2011) (concluding that the

district court abused its discretion by erroneously determining that certain testimony was

inadmissible as a matter of law when the district court had discretion to admit the

testimony). We review questions of constitutional law de novo. Beecroft, 813 N.W.2d

at 836.

10
The United States Supreme Court also has not ruled on this question. See State v.
Herbert, 767 S.E.2d 471, 480 (W. Va. 2014) (considering whether the district court must
require a non-party witness to invoke the right against self-incrimination in the jury’s
presence and noting “that the United States Supreme Court has not ruled on this issue,
meaning that the states have discretion on how to approach this issue under the federal
Fifth Amendment and respective state constitutions”).

17

A.

We turn first to the parties’ dispute about the precedent we set in State v. Moose,

266 N.W.2d 521. We interpret our own case law de novo. State v. Oberton, 10 N.W.3d

64, 72 (Minn. 2024).

The State contends, as the court of appeals concluded, that Moose created a

categorical rule that a defendant may never call a witness to the stand if the defendant

knows that the witness has invoked or intends to invoke the right against self-incrimination.

The State and the court of appeals primarily rely on the following statement in

Moose: “Our analysis begins from the well-settled rule that a valid claim of the privilege

against self-incrimination under the Fifth Amendment takes precedence over the Sixth

Amendment right to compulsory process.” 266 N.W.2d at 525. Foster argues that the court

of appeals overextended Moose. We agree.

Moose did not create a categorical rule prohibiting a defendant from calling a

witness when that witness has invoked or intends to invoke the right against

self-incrimination. Our statement in Moose was made in the context of a dispute about

whether an attorney has an ethical obligation to call a witness who has invoked or will

invoke the right against self-incrimination. 11 See id. at 524–25. The question here is

11
We also note that Moose cited the American Bar Association (ABA) Standards for
Criminal Justice, which stated that it is unethical to call a trial witness when it is known
that the witness will assert their right against self-incrimination. See Standards Relating to
the Defense Function § 7.6(c) (Am. Bar Ass’n 1971) (“It is unprofessional conduct for a
lawyer to call a witness who he knows will claim a valid privilege not to testify, for the
purpose of impressing upon the jury the fact of the claim of privilege.”). The State relied
on this standard in arguing that defense counsel’s decision not to call the alternative

18

different. And of the cases that we cited in support of the statement in Moose, only

one—State v. Spencer—is binding on this court, and it addressed an entirely different issue

than the one we face here. See State v. Spencer, 248 N.W.2d 915, 919 (Minn. 1976)

(addressing whether “[a] witness’[s] refusal to answer otherwise permissible questions on

Fifth Amendment grounds . . . violate[d] [the] defendant’s Sixth Amendment right to

cross-examine”). We have not said that a defendant cannot, as a matter of law, call to the

stand a witness who intends to invoke their right again self-incrimination.

Our statement in Moose stands for a more limited, but important, proposition: A

defendant’s assertion of the right to compulsory process does not trump a witness’s right

against self-incrimination such that the defendant can compel a right-invoking witness to

give incriminating testimony. This interpretation of Moose is supported by our decision in

State v. Graham, in which we cited Moose for the principle that “[a] defendant’s

constitutional right to present a defense . . . does not permit a defendant to compel a

prospective witness to waive her Fifth Amendment privilege against self-incrimination.”

764 N.W.2d 340, 349 (Minn. 2009) (citing Moose, 266 N.W.2d at 525). Here, although

the analysis in Moose undoubtedly prevents Foster from forcing R.J. to provide

incriminating answers, it does not categorically foreclose Foster’s request to call R.J. to the

witness stand.

perpetrator as a trial witness was proper. The ABA standard has since been amended.
Although the amended standard discourages calling a witness under these circumstances,
it no longer expressly prohibits doing so. See Criminal Justice Standards for the Defense
Function § 4-7.7(c) (Am. Bar Ass’n, 4th ed. 2017) (“Defense counsel should not call a
witness in the presence of the jury when counsel knows the witness will claim a valid
privilege not to testify.”).

19

B.

Because Moose does not categorically prohibit a defendant from calling a witness

who has invoked or intends to invoke the right against self-incrimination, we must next

address the unsettled question of whether a defendant may call an alternative perpetrator

to the witness stand when it is known that the alternative perpetrator will invoke their right

against self-incrimination. We must view this question through the lens of a defendant’s

rights to compulsory process and to present a complete defense.

The State argues that an invocation of the right against self-incrimination does not

have probative value, and defendants (like prosecutors) should therefore not be allowed to

call a trial witness who will do nothing more than invoke the right. To support its assertion,

the State relies on State v. Mitchell, in which we stated that “the answer of the witness that

he refused to answer on the ground that his answers might tend to incriminate him . . . of

course was no evidence at all.” 12 130 N.W.2d 128, 133 (Minn. 1964) (citation omitted)

(internal quotation marks omitted).

12
The State also cites State v. Morales, 788 N.W.2d 737, 757 (Minn. 2010), as well
as a federal case not binding on this court, for the assertion that the invocation of the right
against self-incrimination can never have probative value. See United States v. Maloney,
262 F.2d 535, 537 (2d Cir. 1959). But the reasoning in these cases, and many others not
cited by the State, rests not on a categorical assertion that an invocation can never have
probative value but rather on the risk of prejudicial inferences by juries. See Morales,
788 N.W.2d at 756–57; Maloney, 262 F.2d at 537; see also Bowles v. United States,
439 F.2d 536, 541–42 (D.C. Cir. 1970) (“[A] witness should not be put on the stand for the
purpose of having him exercise his privilege before the jury. This would only invite the
jury to make an improper inference.”); People v. Myers, 220 N.E.2d 297, 311 (Ill. 1966)
(“While an examination of such a witness adds little material evidence, it operates to
prejudice the defendant in the eyes of the jury.”); State v. Berry, 324 So.2d 822, 830
(La. 1975) (“[C]laims of privilege are preferably determined outside the presence of the

20

When read broadly, the language from Mitchell provides some support for the

State’s position, but Mitchell applies only to a prosecutor seeking to call a witness whom

the prosecutor knows will invoke the right against self-incrimination. See id. at 129–31.

In Mitchell, we focused on “conduct [that] tends to undermine the integrity of the judicial

process and vitiates . . . conviction[s]” when we established the rule that “where the

prosecution calls a witness for the purpose of prejudicing the defendant in the minds of the

jury, knowing that the witness will claim immunity, reversible error results[,] . . . even

[when] it cannot be established that prejudice results.” 13 Id. at 131. As explained below,

we decline to extend the holding in Mitchell to the circumstances presented here, because

prosecutors and defendants are not similarly situated in at least two critical ways and

jury, since undue weight may be given by a jury to the claim of privilege and due to the
impossibility of cross-examination as to its assertion.”); State v. Nunez, 506 A.2d 1295,
1298–99 (N.J. Super. Ct. App. Div. 1986) (“[T]he jury is not entitled to draw any inference
from the decision of a witness to exercise his constitutional privilege whether those
inferences be favorable to the prosecution or the defense.” (citation omitted) (internal
quotation marks omitted)); Commonwealth v. Greene, 285 A.2d 865, 867 (Pa. 1971)
(“Reviewing the principle that the jury may not draw any inference from a [witness’s]
exercise of his constitutional rights . . . , the court applied the corollary to this rule that a
witness should not be placed on the stand for the purpose of having him exercise his
privilege before the jury. We are in agreement . . . .”); State v. Hughes, 493 S.E.2d 821,
823–24 (S.C. 1997) (“Here, defense counsel knew [the witness] would invoke his privilege
against self-incrimination and sought to put him on the stand solely to allow the jury to
draw adverse inferences from his refusal to testify. We concur . . . that such an inference
is impermissible.”).
13
If the State calls a witness in good faith, and the witness invokes their right against
self-incrimination, the reviewing court must engage in a factual inquiry, asking “whether,
in content and extent, the prosecutor’s examination is of a type that has prejudiced
defendant to the extent that he has been denied a fair trial.” Mitchell, 130 N.W.2d at 131;
see Morales, 788 N.W.2d at 753–55 (providing factors for distinguishing between good
and bad faith).

21

because we are unconvinced that calling an alternative perpetrator to the witness stand can

never have probative value.

First, the Mitchell framework aims to address the concern that calling a witness to

the stand for the sole purpose of eliciting an invocation of the right against

self-incrimination may invite the jury to make improper inferences about the defendant’s

guilt. For example, if a co-defendant witness invokes the right on the stand, the jury may

infer that the co-defendant has something to hide and impute that perceived culpability to

the defendant. An inference of this kind could undermine the integrity of the judicial

process and vitiate the conviction. See id. at 130–31; see also Namet v. United States,

373 U.S. 179, 185–88 (1963) (summarizing the policy concerns underlying similar

approaches in other jurisdictions). Such inferences are inculpatory and are therefore

distinct from the potential exculpatory effects of a defendant calling a witness to the stand

who will invoke the right against self-incrimination. See Rios-Vargas v. People, 532 P.3d

1206, 1215 (Colo. 2023); Gray v. State, 796 A.2d 697, 713–14 (Md. 2002); Bowles v.

United States, 439 F.2d 536, 545 n.11 (D.C. Cir. 1970) (Bazelon, C.J., dissenting).

Second, the State’s unique ability to confront a right-invoking witness also supports

affording more leeway to defendants. If a prosecutor calls a witness, and that witness

invokes their right against self-incrimination, the defendant has no opportunity to

cross-examine that witness to mitigate any improper inferences the jury may have made

based on the invocation. In contrast, if a defendant calls a witness and that witness invokes

the right, the prosecution may seek an order compelling the witness to testify, and if the

order is granted, the witness receives what is known as “use immunity.” See Minn. Stat.

22

§ 609.09 (2024) (referred to as the “use-immunity statute”); Bolstad v. State, 878 N.W.2d

493, 495 n.1 (Minn. 2016) (explaining procedures under the use-immunity statute); State

v. Morales, 788 N.W.2d 737, 751 (Minn. 2010) (concluding that the immunity granted

under the use-immunity statute is coextensive with the Fifth Amendment right against

self-incrimination).

With the constitutional prerogative of fundamental fairness in mind, these two

distinctions between prosecutors and defendants matter when evaluating the value of an

invocation to the jury. This is especially true when we consider that a defendant has a

constitutionally guaranteed right to present a complete defense, while the State has no

equivalent right to present a complete offense.

Our constitutional concerns only grow when we consider the potential probative

value of the evidence here. We have never held that an alternative perpetrator’s invocation

of their right against self-incrimination lacks probative value as a matter of law. Evidence

has probative value if it has “any tendency to make the existence of any fact that is of

consequence . . . more probable or less probable than it would be without the evidence.”

Minn. R. Evid. 401 (emphasis added). Framed differently, we have said that evidence has

probative value “if, when taken alone or in connection [with] other facts, [the evidence]

warrants a jury in drawing a logical inference assisting, even though remotely, the

determination of the issue in question.” State v. Schulz, 691 N.W.2d 474, 478 (Minn. 2005)

(emphasis added). We cannot say with categorical certainty that an alternative

perpetrator’s invocation of the right against self-incrimination, when taken in connection

with other evidence, can never support a logical inference by a jury as to the defendant’s

23

guilt or any other determination in question—especially given the threshold Hawkins

requirement that there be evidence connecting the alternative perpetrator to the crime. 14

We therefore conclude that an invocation of the right against self-incrimination by an

alternative perpetrator can have probative value.

Given our conclusion that an alternative perpetrator’s invocation of the right against

self-incrimination can have probative value in some instances, we would offend

constitutional principles by categorically prohibiting a defendant from calling a

right-invoking alternative perpetrator to the witness stand.

To start, a categorical prohibition would offend the constitutional right to present a

complete defense. Such a prohibition would arbitrarily preclude defendants raising an

alternative perpetrator defense from presenting defense evidence, through the act of calling

a trial witness who intends to invoke the right against compelled self-incrimination, that

may be probative and admissible under the Minnesota Rules of Evidence. The due process

“right to present a complete defense includes the right to present evidence,” subject to

evidentiary rules. Swaney, 787 N.W.2d at 556; Pass, 832 N.W.2d at 841–42. But an

evidentiary rule that limits the right to present defense evidence is unconstitutional if it

14
See Rios-Vargas, 532 P.3d at 1216 (implicitly identifying the probative value of an
invocation of the right against self-incrimination in stating that a defendant raising an
alternative perpetrator defense “can suffer prejudice if the jury is prevented from seeing”
the alternative perpetrator, which presupposes that the mere act of the alternative
perpetrator taking the stand can lead to inferences by the jury about the defendant’s guilt);
see also Herbert, 767 S.E.2d at 481; Gray, 796 A.2d at 715 (“[W]e disagree with the courts
that take the sweeping view that there can never be probative value to a witness’s assertion
of the privilege [against self-incrimination] in a criminal case . . . .” (citation omitted)
(internal quotation marks omitted)).

24

“ ‘serve[s] no legitimate purpose or [is] disproportionate to the ends [it is] asserted to

promote.’ ” Pass, 832 N.W.2d at 842 (quoting Holmes, 547 U.S. at 326).

The only identifiable purpose for adopting a categorical prohibition would be to

exclude “unfairly prejudicial, confusing, or misleading evidence.” Id. But because

Rules 402 and 403 of the Minnesota Rules of Evidence already serve that purpose, a

categorical prohibition would be an undue additional restriction on the right to present a

complete defense in violation of the Due Process Clauses of the United States and

Minnesota Constitutions. See Pass, 832 N.W.2d at 841–42 (citing Holmes, 547 U.S.

at 326–27).

And a categorical prohibition would also run afoul of the principle of fundamental

fairness that underlies the right to present a complete defense. Such a rule would ignore

consequential risks unique to defendants in alternative perpetrator cases. A defendant who

raises an alternative perpetrator defense “can suffer prejudice if the jury is prevented from

seeing” the alternative perpetrator. Rios-Vargas, 532 P.3d at 1216. Excluding the

alternative perpetrator “ ‘from the jury’s presence may cause jurors to unfairly assume that

the defense was frivolous or insincere because they did not see the witness be

questioned.’ ” Id. (quoting State v. Herbert, 767 S.E.2d 471, 481 (W. Va. 2014)). The jury

may also “conclude that the defendant ‘chose[] not to ask [the alternate suspect] any

questions about the [crime] out of a lack of confidence in his defense.’ ” Id. (alterations in

original) (quoting Gray, 796 A.2d at 708).

For the foregoing reasons, we reject a categorical rule prohibiting a defendant from

calling to the witness stand an alternative perpetrator who intends to invoke the right,

25

because such a rule would infringe on the rights to compulsory process and to present a

complete defense protected by the United States and Minnesota Constitutions. By rejecting

a categorical prohibition, we join many other courts. See, e.g., Gray, 796 A.2d at 715;

Rios-Vargas, 532 P.3d at 1216; Herbert, 767 S.E.2d at 482–83; State v. McDaniel,

665 P.2d 70, 76 (Ariz. 1983); People v. Thomas, 415 N.E.2d 931, 934 (N.Y. 1980).

We emphasize that, in rejecting a categorical prohibition, we do not infringe on any

constitutional right of the alternative perpetrator because “an assertion of the privilege

[against self-incrimination] poses no prejudice to” an alternative perpetrator. Rios-Vargas,

532 P.3d at 1216. Even if an alternative perpetrator were to invoke the right against

self-incrimination on the witness stand, that invocation could not be used against them in

a future prosecution. Id. (citing Griffin v. California, 380 U.S. 609, 615 (1965)). In other

words, in a case like this one, it is only the defendant whose rights and liberty interest are

at stake and must be protected. See id.

Because we decline to adopt a categorical prohibition, we must next address the

circumstances in which a defendant may call an alternative perpetrator to the witness stand.

One option would be to impose a categorical rule in the other direction, which would mean

that a defendant would always be entitled to call an alternative perpetrator who will invoke

the right against self-incrimination on the stand. Although some courts have adopted such

a rule, see, e.g., Rios-Vargas, 532 P.3d at 1216–17; Herbert, 767 S.E.2d at 479, we decline

to do so. Depriving the district courts of discretion could invite abuse. See Herbert,

767 S.E.2d at 498–99 (Loughry, J., concurring) (explaining the many pitfalls of an “express

foreclosure of any discretion to trial courts” and noting, for example, that such a rule would

26

“grant[] prosecutors and defense counsel carte blanche to badger witnesses by repeatedly

asking questions designed to elicit the invocation of the Fifth Amendment privilege”).

Instead, we hold that the district court must have discretion to admit this type of evidence

under the ordinary rules of evidence. 15

The district court’s decision to allow an alternative perpetrator’s invocation of their

right against self-incrimination on the witness stand must be a case-specific inquiry guided

by the Minnesota Rules of Evidence. See, e.g., Minn. R. Evid. 403 (“[E]vidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . .”); see also Gray, 796 A.2d

at 715 (“The question is not whether a witness’s assertion of the privilege is devoid of

evidentiary value,” but instead whether “a trier of fact in a criminal case should be

permitted to give that act evidentiary value and, if so, under what circumstances.”

(emphasis added) (citation omitted) (internal quotation marks omitted)).

The district court’s discretion in this context is not without guardrails. To the

contrary, three important principles help guide the exercise of this discretion:

First, our holding is limited to defendants who, like Foster, have satisfied the

threshold “Hawkins test” for raising an alternative perpetrator defense. See Hawkins,

260 N.W.2d at 158–59. The first prong of the Hawkins test, which requires that the

defendant put forth “evidence having an inherent tendency to connect such other person

15
Maryland’s highest court adopted a similar approach in Gray, 796 A.2d at 714–16.
We note, however, that the holding in Gray was not limited to alternative perpetrator cases
as ours is. Id. at 714.

27

with the actual commission of the crime,” prevents defendants from calling witnesses with

no connection to the case. Id. at 159 (citation omitted) (internal quotation marks omitted).

This guardrail addresses the concern raised by some courts that, under an overly permissive

approach, a “defendant could subpoena any known person of disrepute and force him or

her to take the Fifth.” State v. Heard, 934 N.W.2d 433, 444 (Iowa 2019) (internal quotation

marks omitted).

Second, the district court must still apply the ordinary rules of evidence, including

Minnesota Rules of Evidence 402 and 403. See Minn. R. Evid. 402 (providing that only

relevant evidence is admissible and that relevant evidence may be excluded by other rules

or laws); Minn. R. Evid. 403 (“[E]vidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of time, or needless

presentation of cumulative evidence.”). The district court remains free to prevent an

alternative perpetrator from taking the stand to invoke the right against self-incrimination

based on the rules of evidence, including weighing the probative value against the risk of

unfair prejudice to the State. See Minn. R. Evid. 403. This comports both with a

defendant’s constitutional rights to compulsory process and to present a complete defense

and with our longstanding precedent holding that those rights are tempered by the ordinary

rules of evidence. See Richards, 495 N.W.2d at 195; Pass, 832 N.W.2d at 841–42.

Third, we emphasize that our holding here does not upset our holding in Moose. A

party’s assertion of the right to compulsory process (or to present a complete defense) does

not trump a witness’s right against self-incrimination such that the party can compel a

28

right-invoking witness to give incriminating testimony. See Moose, 266 N.W.2d at 525;

Graham, 764 N.W.2d at 349 (citing Moose, 266 N.W.2d at 525). Alternative perpetrators

remain entitled to invoke their right against self-incrimination on the witness stand.

In sum, we hold as follows: When a defendant has satisfied the required test to

present an alternative perpetrator defense, the district court may exercise its discretion to

allow the defendant to call the alternative perpetrator as a trial witness, even when it is

known that the alternative perpetrator will invoke the right against self-incrimination; in

exercising its discretion, the district court must determine whether the alternative

perpetrator’s invocation of the right against self-incrimination comports with the ordinary

rules of evidence.

III.

Having clarified the law, we next apply our holding to Foster’s case to determine

whether the district court abused its discretion by denying Foster’s request to call R.J. as

a trial witness when the parties knew that R.J. would invoke the right against

self-incrimination. We conclude that the district court did not abuse its discretion.

When it denied Foster’s request to call R.J. as a trial witness, the district court

provided two independent bases for excluding the evidence under Minnesota Rule of

Evidence 403. First, after acknowledging a lack of clarity in the law, the court concluded

that an invocation of the right against self-incrimination lacks probative value. Second, the

district court reasoned that—even if R.J.’s invocation of the right in the presence of the

jury had probative value—the presentation of the evidence in this particular case would be

needlessly cumulative.

29

The parties’ arguments focus on the district court’s first basis—an invocation of the

right against self-incrimination in the presence of the jury lacks probative value as a matter

of law. As we note above, there is no per se rule that such testimony lacks probative value.

Consequently, the court of appeals erred when it affirmed the district court’s decision on

that basis.

But this conclusion does not end our analysis. Although the parties did not focus

on the district court’s second basis for excluding R.J.’s testimony, we must “decide cases

in accordance with law” even when parties do not raise a particular issue, so long as that

issue is not “novel or questionable.” State v. Hannuksela, 452 N.W.2d 668, 673 n.7

(Minn. 1990) (addressing an issue that neither party raised in its briefing or at oral

argument); see also State v. Vasko, 889 N.W.2d 551, 555–56 (Minn. 2017) (affirming the

court of appeals’ interpretation of a statute despite neither party raising the issue of

ambiguity before the court of appeals); State v. Beganovic, 991 N.W.2d 638, 643–47

(Minn. 2023) (interpreting a term differently from the parties’ agreed meaning). As noted

above, faced with the circumstances presented in this case, a district court should apply the

ordinary rules of evidence, and there is nothing novel or questionable about the application

of the ordinary rules of evidence here.

Rule 403 of the Minnesota Rules of Evidence provides that “relevant[] evidence

may be excluded if its probative value is substantially outweighed . . . by

considerations of . . . needless presentation of cumulative evidence.” Rulings concerning

the admissibility of evidence under Rule 403 are within the discretion of the district court

and are reversed only for a clear abuse of that discretion. Schulz, 691 N.W.2d at 477. A

30

district court abuses its discretion when its decision is “against logic and the facts in the

record.” See Hallmark, 927 N.W.2d at 291 (citation omitted) (internal quotation marks

omitted). “We afford the district court broad discretion when ruling on evidentiary

matters,” Doe 136 v. Liebsch, 872 N.W.2d 875, 879 (Minn. 2015), and we “will not lightly

overturn a trial court’s evidentiary ruling.” State v. Robertson, 884 N.W.2d 864, 872

(Minn. 2016) (citation omitted) (internal quotation marks omitted). In accordance with

Rule 403 and the applicable standard of review, we routinely affirm the exclusion of

evidence on the ground that it would involve needless presentation of cumulative

evidence. 16

Here, the district court denied Foster’s request to call R.J. as a trial witness on the

alternative ground that R.J.’s invocation of the right against self-incrimination would be

needlessly cumulative. It reasoned, “[I]n this case, all the things that you listed off that

you were going to rely on to make the argument that [R.J.] was the actual perpetrator,

they’re still there.” In support of his motion to raise an alternative perpetrator defense,

Foster had submitted a list of evidence that he planned to introduce to show that R.J.

murdered Bradley. The list included evidence of R.J.’s criminal history and photos of R.J.

from government records. It also included Foster’s own eyewitness testimony. According

16
For example, in State v. Martin, 614 N.W.2d 214, 225 (Minn. 2000), we held that
the district court did not abuse its discretion when it excluded additional impeachment
testimony when the defendant presented extrinsic evidence of a phone call that impeached
the witness in question. And in State v. Zumberge, 888 N.W.2d 688, 695–97 (Minn. 2017),
we held that the district court did not abuse its discretion when it excluded testimony
regarding the victim’s threatening behavior, character, and previous possession of a gun
because the excluded evidence covered the same ground as other evidence admitted at trial.

31

to Foster, he planned to testify that he knew R.J., that R.J. had been dealing drugs out of

Bradley’s home around the date of the murder, that R.J. gave Foster crack cocaine in

exchange for rides on the weekend of the murder, that Foster witnessed R.J. violently attack

Bradley at the scene of the murder, that R.J. also attacked Foster, and that Foster escaped

the attack while R.J. and Bradley remained in the home. 17 Given this list of other evidence,

it was within the district court’s considerable discretion to balance the probative value of

an invocation by R.J. against its cumulativeness. And based on our review of the evidence

and our deferential standard of review, we cannot say that the second, independent basis

for the district court’s denial of Foster’s request to call R.J. as a trial witness was “against

logic and the facts in the record.” Hallmark, 927 N.W.2d at 291 (citation omitted) (internal

quotation marks omitted). The district court did not clearly abuse its discretion when it

denied Foster’s request.

CONCLUSION

For the foregoing reasons, we affirm the decision of the court of appeals on other

grounds.

Affirmed.

17
Although it is not relevant to the district court’s pretrial determination, we note that,
at trial, Foster also presented security camera footage featuring a man Foster identified as
R.J. entering and leaving Bradley’s home several times on the day of Bradley’s murder.

32

CONCURRENCE

GAÏTAS, Justice (concurring).

I agree with the court’s determination in section I that Foster forfeited the argument

that the district court abused its discretion by not granting his request to call R.J. as a

witness for a nontestimonial purpose. Additionally, I agree with the court’s holding in

section II that a district court has discretion to allow a defendant to call an alternative

perpetrator as a trial witness even when it is known that the alternative perpetrator will

invoke the privilege against self-incrimination. I write separately, however, because I

disagree with the court’s decision to affirm on a basis that the State never raised—that

allowing Foster to call R.J. as a trial witness would have resulted in needlessly cumulative

evidence.

Under the principle of party presentation, an appellate court should not decide a case

based on an issue that was not raised or briefed by the parties. Greenlaw v. United States,

554 U.S. 237, 244 (2008). This principle is fundamental to our adversarial system of

justice. See Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 147 n.10 (2011)

(“The premise of our adversarial system is that appellate courts do not sit as self-directed

boards of legal inquiry and research, but essentially as arbiters of legal questions presented

and argued by the parties before them.” (citation omitted) (internal quotation marks

omitted)). In our adversarial system, “we rely on the parties to frame the issues for decision

and assign to courts the role of neutral arbiter of matters the parties present.” Greenlaw,

554 U.S. at 243. Although an appellate court may affirm a judgment on any ground, that

ground must be raised by a party to the case. See Leuthard v. Indep. Sch. Dist.

C-1

912 – Milaca, 958 N.W.2d 640, 650 (Minn. 2021) (reversing Workers’ Compensation

Court of Appeals because it relied on a claim not raised on appeal to reverse compensation

judge’s decision); State v. Vang, 847 N.W.2d 248, 259 n.4 (Minn. 2014) (“Because

appellant does not challenge the sufficiency of the evidence that appellant was in or had

just exited a motor vehicle, we do not address that issue.”); State v. Swaney, 787 N.W.2d

541, 551 n.4 (Minn. 2010) (noting that, because the parties did not raise an issue, the issue

was not before the court); State v. Edrozo, 578 N.W.2d 719, 722 n.4 (Minn. 1998)

(declining to address an issue discussed by the court of appeals because neither party raised

it before the supreme court); Johnson v. Dirkswager, 315 N.W.2d 215, 219 (Minn. 1982)

(electing not to base the court’s decision on an issue that appellants did not raise or brief).

On occasion, there may be tension between the party presentation principle and

our obligation to decide cases in accordance with the law. See State v. Hannuksela,

452 N.W.2d 668, 673 n.7 (Minn. 2014) (observing that this court has a duty to decide cases

in accordance with the law); see also Minn. R. Civ. App. P. 103.04 (stating that an appellate

court may “take any . . . action as the interest of justice may require”); Minn. R. Crim.

P. 28.02, subd. 11 (“On appeal from a judgment, the court may review . . . any other matter,

as the interests of justice may require.”). “To the extent courts have approved departures

from the party presentation principle in criminal cases, the justification has usually been to

protect a [self-represented] litigant’s rights.” Greenlaw, 554 U.S. at 243–44.

“[A]s a general rule, our system ‘is designed around the premise that [parties

represented by competent counsel] know what is best for them, and are responsible for

advancing the facts and argument entitling them to relief.’ ” United States v.

C-2

Sineneng-Smith, 590 U.S. 371, 375–76 (2020) (quoting Castro v. United States,

540 U.S. 375, 386 (2003) (Scalia, J., concurring in part and concurring in judgment))

(second alteration in original). When we decide a case on a basis that has not been raised

by a party, we tread dangerously close to functioning not as a neutral arbiter, but as an

advocate for one party or another. See State v. Malone, 963 N.W.2d 453, 464 (Minn. 2021)

(“A judge must not act as counsel for a party to the litigation.”).

Here, the court affirms the court of appeals’ decision—and Foster’s conviction—on

a ground that the State never presented to the district court, the court of appeals, or this

court. Picking up on the district court’s sua sponte backup rationale for denying Foster’s

motion to call R.J. as a witness, the court concludes that calling R.J. to the stand would

have resulted in needlessly cumulative evidence.

As noted, the State did not present this argument in the district court. Instead, the

State vigorously argued that a defendant should never be allowed to call a witness who

intends to invoke the privilege against self-incrimination. Moreover, on appeal, the State

has never defended the district court’s ruling on the alternative ground that calling R.J. to

the stand would have resulted in needlessly cumulative evidence. Before the court of

appeals and this court, the State has consistently argued that the law prohibits calling a

witness who intends to invoke the privilege against self-incrimination, and alternatively,

that any error in excluding the evidence was harmless beyond a reasonable doubt. Because

the State never raised the cumulative-evidence argument, it was not developed in the

district court or on appeal. More importantly, Foster has never had an opportunity to

respond to this argument.

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Because the cumulative-evidence argument was never presented, and Foster never

had an opportunity to address it, we should not raise it and rely on it as a basis to affirm.

Doing so violates the party presentation principle, and there is no justification for departing

from this principle here.

Nonetheless, I agree with the court’s ultimate decision to affirm. I would affirm

based on an argument that the State did present on appeal—harmless error. Even if the

district court abused its discretion by denying Foster’s request to call R.J. as a trial witness,

in my view, any error was harmless beyond a reasonable doubt. When a district court’s

evidentiary error amounts to a constitutional error, such as denying a defendant the right to

present a complete defense, we must consider whether the exclusion of the evidence was

harmless beyond a reasonable doubt. State v. Carbo, 6 N.W.3d 114, 123 (Minn. 2024).

An error is harmless beyond a reasonable doubt when the reviewing court is satisfied

beyond a reasonable doubt that, “[i]f the evidence had been admitted and the damaging

potential of the evidence fully realized, . . . a reasonable jury[] would have reached the

same verdict.” State v. Post, 512 N.W.2d 99, 102 (Minn. 1994) (footnote omitted).

If the district court had allowed Foster to call R.J. as a trial witness, the damaging

potential of this evidence would have been minimal. The record shows that R.J. would

have immediately invoked the privilege against self-incrimination. Based on R.J.’s

invocation, the district court would have instructed the jury that it could not draw any

improper inferences from R.J.’s decision not to testify. R.J.’s appearance at trial may have

provided some additional evidence that R.J. was a real person. But the jury already had

evidence showing that this was the case, including photos of R.J. and video of R.J. at the

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scene of the murder. Thus, calling R.J. to the stand would not have meaningfully advanced

Foster’s trial theory that R.J. killed Bradley.

In arguing that he was prejudiced by his inability to call R.J. as a witness, Foster

points to the State’s closing argument. He contends that calling R.J. to the stand would

have allowed him to refute the prosecutor’s comments that his defense was a “story,” a

“concocti[on],” and a “fabrication.” However, the prosecutor’s closing argument did not

question whether R.J. was a real person or whether R.J. was the man visible in the security

camera footage. Rather, the prosecutor’s remarks challenged Foster’s claim that he did not

kill Bradley. Calling R.J. to the stand would not have addressed the prosecutor’s argument

that there was overwhelming evidence that Foster was the person who killed Bradley.

Indeed, the evidence that Foster killed Bradley was substantial. That evidence

included Foster’s DNA evidence at the murder scene, Foster’s flight from the scene,

Bradley’s blood in Foster’s abandoned truck, and injuries to Foster’s hands, legs, and

shoulder. Given the strength of the State’s case, and the minimal probative value of calling

R.J. to the stand, I conclude that any error in the district court’s exclusion of this evidence

was harmless beyond a reasonable doubt.

For these reasons, I agree with the court’s decision to affirm the decision of the court

of appeals. But I do not join section III of the majority’s decision.

HUDSON, Chief Justice (concurring).

I join in the concurrence of Justice Gaïtas.

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