State v. Rud

¶1dissenting.

¶2I respectfully dissent. Prior to the adoption of the Minnesota Rules of Criminal Procedure a defendant was accorded a pretrial hearing under Minn.Stat. § 629.50. That statute provided:

“The magistrate before whom any person shall be brought upon a charge of having committed an offense shall, as soon as may be, examine the complainant and the witnesses in support of the prosecution, on oath, in the presence of the party charged, in relation to any pertinent matter connected with such charge, after which the witnesses for the prisoner, if he has any, shall be sworn and examined, and he may be assisted by counsel in such examination, and also in the cross-examination of the witnesses in support of the prosecution.”

¶3Although the above statute was applied in various fashions by the judges of this state, the courts generally recognized that its language authorized a hearing where witnesses could be examined and cross-examined, where unwilling witnesses could be subpoenaed and interrogated, where evidence could be received, whether or not admissible at trial, and where the details and basis of an accusation could be forced into the open and examined. See State v. Florence, 306 Minn. 442, 448, 239 N.W.2d 892, 897 (1976). This broad construction of the statute which, in effect, led to mini-trials of probable cause issues and other issues concerning the bases for complaints, led some courts to also permit the pretrial hearing to be conducted as a forum for discovery. This extension of the hearing’s purpose is understandable in light of the absence at that time of the present discovery rules.

¶4In 1975 the Minnesota Rules of Criminal Procedure were promulgated by the supreme court. The purpose of the new rules was “to provide for the just, speedy determination of criminal proceedings” and “to secure simplicity in procedure, fairness in administration, and the elimination of unjustifiable expense and delay.” Rule 1.02, Minn.R.Crim.P. Consistent with this purpose, the rules outlined procedures for discovery and incorporated the concept of the Omnibus Hearing as Rule 11, which consolidated Rasmussen evidentiary hearings, pretrial motions, including motions challenging probable cause, and other pretrial issues. Rule 11.03 which governs pretrial motions now provides:

The court shall hear and determine all motions made by the defendant or prosecution, including a motion that there is an insufficient showing of probable cause to believe that the defendant committed the offense charged in the complaint, and receive such evidence as may be offered in support or opposition. Each party may cross-examine any witnesses produced by the other. A finding by the court of probable cause shall be based upon the entire record including reliable hearsay in whole or in part. Evi*486dence considered on the issue of probable cause shall be subject to the requirements of Rule 18.06, subd. 1.

¶5Shortly after the rules were adopted State v. Florence offered the Minnesota Supreme Court an opportunity to discuss the new probable cause hearing procedures. The Florencecourt, after outlining the history of the new rule, stressed that “[t]he use of the probable cause hearing as a substitute for the discovery permitted by the rules should be discouraged,” Florence, 306 Minn, at 453, 239 N.W.2d at 900, and indicated that the probable cause hearing should now generally take place after discovery has been completed. Id., at 453, 239 N.W.2d at 900. Thus recognizing the separate functions of the discovery rules and the probable cause hearing the court noted further:

In most instances, the information available to the judge presiding at an omnibus hearing will form an adequate basis for determining probable cause, thus making unnecessary the production and cross-examination of witnesses in court. This is so because the “entire record including reliable hearsay in whole or in part” should include, at the time of the hearing upon the Rule 11.03 motion, all the information developed during the course of discovery. The rules contemplate that information generated by the disclosure and discovery procedures should forthwith be filed in the manner provided in civil actions.

¶6Florence, 306 Minn, at 453, 239 N.W.2d at 900 (footnotes omitted).

¶7Although interpreting the new rule as dispensing with the necessity for examination and cross-examination in most cases, the Florencecourt realized that there will nonetheless be instances where witness testimony will be presented to supplement the record. However, in view of the limited requirement for such examination, the Florencecourt recognized only one situation where a defendant might be permitted to offer testimony at the probable cause hearing: where the defendant “produces a witness subject to cross-examination whose testimony, if believed, would exonerate him.” 306 Minn, at 459, 239 N.W.2d at 903. Witnesses in this latter classification include:

[a] A defendant who denies the offense,

[b] a witness who places defendant at a place other than the scene of the crime,

[c] a witness who identifies a person other than the defendant as the perpetrator of the offense, [d] a witness to the offense who describes it in terms which, if true, demonstrate the absence of one or more essential elements of the crime charged.

¶8Id., at 459, 239 N.W.2d at 903. In the present instance, the majority adds another type of witness to this list in the form of victims whose testimony might provide a foundation for testimony which might exonerate the defendant. Because the child victims’ testimony in the present situation would not itself exonerate the defendant but would only be used to provide a basis for other testimony, it is clearly outside the contemplation of Florence. Further, it should be noted that Florenceconcerned itself with testimony which if believed would exonerate a defendant. In this instance it would appear that the defendants will not be exonerated if the victims’ testimony is believed; rather, the defendants’ purpose in calling the children will be to challenge their credibility.1

¶9Rule 11.03 states clearly that at the probable cause hearing “[e]ach party may cross-examine any witnesses produced by the other.” Neither the rule, the official comments, nor Florencegive any indication that a party may cross-examine a witness whom he himself produces by subpoena. Although the majority cites State v. Koonsman as authority for the proposition that defendants have some right of confrontation at the omnibus hearing, Koons-man may clearly be distinguished, since that case involved identification testimony and its admissibility at trial under Rule 11.02, Minn.R.Crim.P., rather than Rule *48711.03 which concerns the probable cause hearing.

¶10By its decision to allow a criminal defendant the right to call an alleged victim as a witness at the probable cause hearing the majority is in effect taking a step backwards in time to the period when a pretrial hearing did indeed allow the parties an opportunity for full examination and disclosure. It is recognized that the majority attempts to limit this right by requiring consideration of four factors: (1) the specificity of the criminal complaint, (2) the existence of a written statement or a full transcription of a verbal statement from the alleged victim(s), (3) the specificity and consistency of any police reports, and (4) the availability and opportunity to meet with the alleged victim prior to the omnibus hearing. The majority thus offers the state a choice between (a) allowing the defense to cross-examine the alleged victim at the probable cause hearing, or (b) disclosing to the defense the information gathered by the above four methods. However, whether it chooses alternative (a) or alternative (b), the state is clearly required by the majority opinion to provide the defense with information which is outside the scope of the discovery rules. Nowhere do the Rules of Criminal Procedure require that the state be allowed to either interview or cross-examine the alleged victim, nor do the rules demand that the state either fully transcribe verbal statements by victims or take written statements from them. The majority’s decision, therefore, not only im-permissibly extends Rule 11.03 and State v. Florence; it also extends the rules of discovery beyond their boundaries.

¶11Finally, it appears that the majority has confused the issue of who may testify at the probable cause hearing with the probable cause issue itself. Rather than looking to the specificity of the complaint and the extent of the record to determine whether there is probable cause to prosecute the defendant, trial courts will now be required to examine the complaint and the record to determine whether witnesses should be allowed to testify at the hearing. I respectfully suggest that if the entire record is insufficient to support a finding of probable cause to believe that the defendant committed the offense charged, the solution is not to allow the parties to present witnesses at the probable cause hearing; rather, the trial court should dismiss the complaint.

¶12For the above reasons, I would affirm the trial court’s decision to deny the defendants an opportunity to call the alleged victims as witnesses at the probable cause hearing.