State v. Obeta

STRAS, Justice

(dissenting).

The majority undoubtedly addresses an issue of great importance for sexual assault prosecutions in Minnesota. The majority does so, however, in a case over which we have no jurisdiction. Our rules *295are clear that in order to appeal a pretrial ruling excluding particular evidence, the State bears the burden of showing that the exclusion of the evidence will have a critical impact on its case. In exceptional circumstances, this court may also hear appeals when the interests of justice require review. Neither of those standards are satisfied here, as the majority implicitly concedes by carving out a novel jurisdictional standard. In my view, our jurisdictional rules are binding, and we have no authority to bypass them whenever we see fit. Accordingly, I would dismiss this case for lack of jurisdiction.

I.

Our rules governing appellate jurisdiction permit the appeal of a pretrial order so long as the State can show that “the district court’s alleged error, unless reversed, will have a critical impact on the outcome of the trial.” Minn. R.Crim. P. 28.04, subd. 2. To meet this standard, the State bears the burden of showing “clearly and unequivocally (1) that the district court’s ruling was erroneous and (2) that the ruling will have a ‘critical impact’ on the State’s ability to prosecute the case.” State v. Underdahl, 767 N.W.2d 677, 683 (Minn.2009) (citing State v. McLeod, 705 N.W.2d 776, 784 (Minn.2005)). If the State cannot satisfy its burden of demonstrating that the district court’s pretrial order will have a critical impact on its case, our inquiry is at an end. McLeod, 705 N.W.2d at 784.

Though the State need not show that “the evidence ‘completely destroys’ the state’s case,” it must demonstrate that “excluding the evidence ‘significantly reduces the likelihood of a successful prosecution.’” Id. (quoting State v. Joon Kyu Kim, 398 N.W.2d 544, 551 (Minn.1987)). We are more likely to find a critical impact when the excluded evidence, viewed in the context of the State’s admissible evidence, is “particularly unique in nature and quality” and bears directly on the defendant’s guilt or innocence. In re the Welfare of L.E.P., 594 N.W.2d 163, 168-69 (Minn.1999) (holding that suppression of a videotaped interview with the victim of child sexual abuse would critically impact the prosecution when the child was found incompetent to testify); see also State v. Robb, 605 N.W.2d 96, 99-100 (Minn.2000) (holding that suppression of a shotgun had a critical impact on the State’s ability to prosecute the defendant for felonious possession of a firearm); State v. Aubid, 591 N.W.2d 472, 477 (Minn.1999) (holding that the exclusion of codefendants’ trial testimony had a critical impact when there was no physical evidence connecting the defendant to a murder and the only eyewitness exhibited reluctance to testify); State v. Ronnebaum, 449 N.W.2d 722, 724 (Minn.1990) (holding that suppression of a defendant’s confession had a critical impact on the State’s case).

The State, however, does not seek to introduce evidence that bears directly on Obeta’s guilt or innocence. In this case, the State appeals the district court’s exclusion of expert opinion testimony intended to correct jurors’ misconceptions about typical rape-victim behaviors. As the majority states, the State seeks to admit this evidence to “assist the jury in evaluating evidence in the case that is relevant to the issue of consent,” not to prove that Obeta committed the crime of criminal sexual conduct. We have never found critical impact based on the exclusion of evidence presented for the sole purpose of educating the jury. And for good reason: it is rarely, if ever, the case that expert evidence directed solely at jury education will have a critical impact on the State’s ability to prosecute a case. Such evidence does not prove an element of the crime, directly bolster a witness’s credibility, or even ex*296plain the investigation that led to the decision to charge the defendant with a crime. It is, at most, indirectly related to the State’s ultimate objective of proving the defendant’s guilt beyond a reasonable doubt.

Even if the indirect nature of the evidence presented in this case were not determinative of the critical impact question, the State still cannot meet its burden under the facts of this particular case. Our case law is clear that we must examine the disputed expert testimony in the context of all the other evidence that the State and defense are likely to produce at the trial. See In re L.E.P., 594 N.W.2d at 168. This pretrial appeal is atypical because it reaches us after the court of appeals has already reversed Obeta’s conviction and remanded for a new trial. See State v. Obeta (Obeta I), No. A08-1419, 2009 WL 2596102, at ⅜5-6 (Minn.App. Aug. 25, 2009), rev. denied (Minn. Nov. 17, 2009). Therefore, rather than speculating about whether the excluded evidence will “significantly reduce! ] the likelihood of a successful prosecution,” we can look to the evidence adduced at the first trial as representative of the type and quantum of evidence that may be presented at the retrial.

The defense is likely to raise three coun-terintuitive rape-victim behaviors at the retrial: that the complainant, M.B., waited approximately two to three hours before reporting the rape, did not struggle aggressively, and did not exhibit any vaginal injuries. To counter these facts, M.B. will have the opportunity to explain her own counterintuitive behaviors during her testimony at the retrial. Indeed, M.B. explained at the first trial that she did not report the assault immediately because she was scared, did not know if she wanted to put herself through a trial, and felt ashamed. By offering such explanations at the retrial, M.B. can provide the jury with information that will “assist [it] in evaluating evidence in the ease that is relevant to the issue of consent.” Furthermore, the State can elicit testimony that M.B. exhibited stereotypical rape-victim behaviors after the alleged assault. Specifically, witnesses can testify that M.B. was visibly upset in the aftermath of the incident. See State v. Cao, 788 N.W.2d 710, 718 (Minn.2010) (holding that prompt emotional reactions corroborate a complainant’s allegation of rape). For example, one officer testified: “You could tell that [M.B.] was very upset. She was crying. Her shoulders slumped forward. I could tell something had happened to her.” Therefore, the State will have the opportunity to address any counterintuitive behaviors exhibited by M.B. through her testimony and that of other lay witnesses.

The State’s proffered expert opinion evidence is undoubtedly important, and the State has succeeded in showing that the exclusion of the evidence will adversely affect its ability to prosecute Obeta. However, an adverse effect on the State’s ability to prosecute is not our test for critical impact.1 Rather, the State must demonstrate “clearly and unequivocally” that the impact on its case will be critical2 The State has failed to meet that burden here.

*297II.

When there is a clear jurisdictional rule on point, such as Minn. R.Crim. P. 28.04, subd. 2, that should be the end of our inquiry.3 Strict construction of our jurisdictional rules is particularly important when the State has filed a pretrial appeal. See State v. Rourke, 773 N.W.2d 913, 923 (Minn.2009) (noting our disinclination to hear appeals by the State in criminal cases). As we have stated, hearing appeals by the State in criminal cases is “contrary to common law and therefore must be expressly conferred by statute or must arise by necessary implication.” In re the Welfare of C.W.S., 267 N.W.2d 496, 498 (Minn.1978).

Nonetheless, it appears that the majority invokes a novel, hybrid rule of jurisdiction based upon our authority to review cases in the interests of justice and our supervisory power to ensure the fair administration of justice. Both the precise basis and scope of the majority’s jurisdictional rule are unclear. To the extent I understand the majority’s analysis, I would conclude that our case law does not support the exercise of jurisdiction here.

A.

Our authority to review cases in the interests of justice arises only in “rare and exceptional” circumstances. Vang v. State, 788 N.W.2d 111, 114-15 (Minn.2010). The extraordinary nature of our inherent authority to hear cases over which we would otherwise have no jurisdiction is evident from the limited circumstances in which we have invoked that authority. See, e.g., id. (exercising inherent authority to review a potentially time-barred post-conviction appeal in “a rare and exceptional case” in which the State Public Defender’s Office declined to file a direct appeal on behalf of a fourteen-year-old defendant who was tried as an adult and convicted of first-degree murder); State v. Lessley, 779 N.W.2d 825, 832 (Minn.2010) (reviewing the issue of whether the State must consent to a defendant’s waiver of the right to a jury trial in the interests of justice because the appeal involved “a critical constitutional issue ... capable of repetition yet evading review in the future”); State v. Kromah, 657 N.W.2d 564, 566 (Minn.2003) (reviewing joined cases concerning the admissibility of DNA evidence without deciding whether the exclusion of the DNA evidence had a critical impact because we “expect[ed] that the record in the joined cases ... would provide a more complete and updated record for our review in deciding the complex issues surrounding DNA testing”).

. The majority argues that this case is “rare and exceptional” because Minnesota courts frequently misinterpret State v. Sal*298dana, 324 N.W.2d 227 (Minn.1982), and the issue presented by this case is unlikely to come before us again in the near future. I disagree. We had jurisdiction to review the very question presented by this case when the State filed a petition for further review following the court of appeals’ reversal of Obeta’s conviction and remand for a new trial in Obeta I. To be sure, the majority correctly concludes that some, and perhaps even most, Minnesota courts misinterpret Saldana as creating a categorical prohibition against any expert testimony regarding the behavior of rape victims. But the very fact that this case was brought before us previously proves that some courts employ an appropriately narrow reading of Saldana4 In fact, the Minnesota County Attorneys Association states in its amicus brief that at least one county attorney routinely, and successfully, elicits testimony from sexual assault nurses “that there is no typical reaction to a sexual assault, and that it is ‘not uncommon’ that an individual would suffer no physical injury or delay reporting.” A conviction based on such testimony would presumably provide us with jurisdiction to decide the exact question presented here: whether expert opinion evidence on coun-terintuitive rape-victim behaviors is admissible in a criminal sexual conduct case in which the defendant argues that the sex was consensual.

B.

The majority’s invocation of our “inherent judicial authority to regulate and supervise the rules that govern the admission of evidence in the lower courts,” fares no better as a basis for jurisdiction. Only on rare occasions have we invoked our supervisory powers over the administration of justice to review cases, and then only to announce new, watershed rules of criminal procedure. See, e.g., State v. Scales, 518 N.W.2d 587, 592 (Minn.1994) (adopting a new evidentiary rule requiring all custodial interrogations to be recorded and suppressing per se all unrecorded statements); State v. Lefthand, 488 N.W.2d 799, 801-02 (Minn.1992) (clarifying previous statements made by the court in dicta to explicitly hold that custodial interrogations of represented parties should not proceed without notification to or the presence of counsel); State v. Borst, 278 Minn. 888, 397, 154 N.W.2d 888, 894 (1967) (holding that counsel must be provided to any defendant before the court may impose a sentence of incarceration). If the majority were overruling Saldana, perhaps the majority could make a tenuous analogy to Scales, Lefthand, and Borst. All the majority has done here, however, is to write a narrow opinion that clarifies one aspect of Saldana.

Even more misplaced is the majority’s reliance on our power to adopt rules of evidence and procedure. See, e.g., State v. *299McCoy, 682 N.W.2d 153, 160 (Minn.2004) (stating that the court has the authority to apply Minnesota Statutes governing the admissibility of evidence even when the statutes conflict with the Minnesota Rules of Evidence); State v. Willis, 332 N.W.2d 180, 184 (Minn.1983) (“Inherently, the courts have the power to establish the rules of evidence.”); In re Tracy, 197 Minn. 35, 47, 266 N.W. 88, 93 (1936) (“[C]ourts must be permitted to determine for themselves what they will and what they will not consider as competent evidence.”), as modified by 197 Minn. 35, 267 N.W. 142. To be sure, this court has the inherent power to adopt and amend the rules of evidence. State v. Willis, 332 N.W.2d at 184. But that rulemaking function does not provide an independent source of power to review cases over which we would otherwise have no jurisdiction. Indeed, the majority opinion does not even clarify or adopt a specific rule of evidence,5 meaning that any discussion of our inherent authority to adopt rules of evidence is immaterial.

III.

It is understandable that the majority struggles to find relevant authority to support its exercise of jurisdiction; none of the doctrines the majority invokes fit the circumstances of this case. Our rules do not provide jurisdiction because the State cannot show that the exclusion of expert testimony offered to educate the jury on counterintuitive rape-victim behaviors will have a critical impact on its ability to prosecute Obeta. Nor is this an “exceptional and rare” case warranting review in the interests of justice. Finally, this case does not involve the creation of a watershed rule of criminal procedure or the adoption of a new rule of evidence. Rather, the novel, hybrid rule adopted by the majority appears to be that this court will review a case if it presents an important question of law and the error would be difficult to fix otherwise. Because that is not one of the grounds for jurisdiction found in a statute or rule, I respectfully dissent.

. No matter how compelling the circumstances, we must be cautious about expanding our critical impact jurisprudence. Unlike this court, the court of appeals has mandatory jurisdiction over appeals from pretrial orders. Expanding the scope of Minn. R.Crim. P. 28.04 could lead to a flood of pretrial appeals before the court of appeals, which would delay criminal trials and undermine judicial economy. See State v. Barrett, 694 N.W.2d 783, 787 (Minn.2005).

. The State's pretrial appeal may fail for another reason. The other aspect of the critical impact inquiry is whether the State has "clearly and unequivocally showfn]” that the district court's ruling was erroneous. See Un*297derdahl, 767 N.W.2d at 683. As the majority notes, Minnesota courts (including the court of appeals) have routinely interpreted Saldana as a per se prohibition against the type of expert opinion evidence offered in this case. Given that courts have generally interpreted Saldana in accordance with the view of the district court in this case, it is at best questionable whether the State has shown that the district court's order was “clearly and unequivocally” erroneous.

. The majority argues that this statement is inconsistent with our case law recognizing our authority to decide cases in the interests of justice without addressing critical impact. See State v. Lessley, 779 N.W.2d 825, 832 (Minn.2010); State v. Kromah, 657 N.W.2d 564, 566 (Minn.2003). The cases discussed by the majority invoking our inherent authority, however, represent the exception to our jurisdictional rules. We invoke our inherent authority in only the most exceptional circumstances, see Vang v. State, 788 N.W.2d 111, 114-15 (Minn.2010), which, as discussed below, are not present here. Any other interpretation of our case law permits the exception to swallow the rule.

. The majority is simply mistaken when it suggests that we could not have reviewed the question presented in this case in the appeal from Obeta I. The court of appeals reversed and remanded for a new trial in Obeta I based in part on the fact that a sexual assault nurse examiner improperly testified "about common injuries to and characteristics of sexual assault victims.” Obeta I, 2009 WL 2596102, at *3. The court of appeals held that the nurse’s testimony was inadmissible under Saldana. Id. Though the record was admittedly not as extensive in Obeta I, the record certainly was sufficient to permit this court to answer the question addressed today by the majority opinion: whether courts have read Saldana too broadly as prohibiting all expert opinion evidence regarding rape-victim behaviors. Besides, the adequacy of the record in Obeta I is irrelevant in light of the majority's narrow decision today, which leaves to the sound discretion of the district courts all questions of fact necessary to determine admissibility under Minn. R. Evid. 702, including the foundational reliability of the expert evidence and its helpfulness to the jury.

. We ordinarily rely on our rules committees to propose, evaluate, and recommend the amendment or adoption of rules of evidence and procedure. To the extent the majority amends or adopts a rule of evidence in this case, it has circumvented the normal process for the consideration and adoption of new rules.