(dissenting).
I respectfully dissent. First, I disagree with the court’s conclusion that the prosecutor’s cross-examination of Fields about the theft from his employer was not plain error. Because Fields did not object to the questioning, we review the prosecutor’s conduct under the plain error doctrine. State v. Mayhorn, 720 N.W.2d 776, 785 (Minn.2006). To determine whether the line of questioning was plain error, we look to the requirements of Minn. R. Evid. 608. As the court points out, at the time of Fields’ trial, Rule 608(b) required the conduct to be probative of truthfulness or untruthfulness. But the rule’s language demonstrates that the trial court was required to make the determination as to whether the conduct was probative of truthfulness or untruthfulness before the misconduct could be used for cross-examination:
Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other *787than conviction of crime as provided in Rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness’ character for truthfulness or untruthfulness
Rule 608(b) (emphasis added). The rule’s language is clear that the conduct may be used only in the discretion of the trial court. It is the court’s role to determine whether the conduct is probative of truthfulness or untruthfulness, which necessarily must be done before a party uses the misconduct on cross-examination. The rule does not contemplate the conduct being used at the prosecutor’s whim.
In Fallin, we explained the requirements of Rule 608(b) in order to emphasize the rule’s mandate. See 540 N.W.2d at 521-22. Our decision in Fallin addressed the same circumstance presented in this case: the prosecutor confronted the defendant on cross-examination about specific uncharged conduct for the purpose of impeaching his credibility. Id. at 519. We expressed our concern in Fallin that “the defense apparently had no notice that the prosecutor intended to cross-examine defendant on the subject in question,” and the prosecutor’s offer of proof constituted nothing more than the assertion that the misconduct occurred. Id. at 522. It was in that context that we held that “[t]he proper approach would have been for the prosecutor to give pretrial notice, which would have given the defendant an opportunity to request a hearing on the issue before making a decision as to whether or not to testify.” Id. We then stated that the prosecutor generally may not cross-examine a defendant about other misconduct unless the prosecutor gives notice to the defense, is able to provide the trial court with sufficient evidentiary support justifying the cross-examination, and the prosecutor establishes that the probative value of the cross-examination outweighs its potential for undue prejudice. Id. These requirements, as laid out in Fallin, bolster the rule’s requirement that the trial court must make a determination before the cross-examination can begin.
In this case, the prosecutor did not follow the specific language of the rule as it was written at the time of trial, nor did she follow any of the procedures prescribed in Fallin. The record reflects that both the court and defense counsel expressed surprise over the prosecutor’s cross-examination of Fields about the theft from his employer. The state argues that it did not have a chance to create a record of notice being given because the defendant did not object before the state could demonstrate the cross-examination’s probative value. But both Rule 608(b) and Fallin place the burden on the state to give notice and thus to create the record. The state did not demonstrate to the trial court, and the court did not determine, whether the probative value of the prior misconduct outweighed its prejudicial effect. The record is devoid of any information about the circumstances regarding the alleged theft or how much, if at all, it related to truthfulness or untruthfulness. The court explains that whether to allow the questioning about the prior alleged theft was up to the discretion of the trial court and, therefore, the line of questioning was not clearly inadmissible. What the court fails to acknowledge is that, before the trial court could exercise discretion about whether to allow the questioning, the state had to follow Rule 608’s explicit language and satisfy the procedural requirements outlined in Fallin. Neither of those things happened here. Nor did the trial court have the opportunity to exercise its discretion. In giving the cautionary instruction, the trial court merely made an effort to clean *788up the problem created by the prosecutor after the cat was already out of the bag.
Additionally, the record contains no evidence to support the use of the theft from Fields’ employer in the prosecutor’s cross-examination, except the defendant’s affirmative response to the prosecutor’s question, “And specifically, I’m just talking about a time in the state of Georgia when, I believe, you were in trouble basically for stealing from an employer. Do you recall that?” The state cannot depend on the defendant’s answer and instead must have independent evidence of the misconduct. Fallin, 540 N.W.2d at 522 n. 5 (“[Regardless of whether or not the state is allowed to prove the prior conduct by presenting extrinsic evidence to the jury, the state must be able to satisfy the trial court that there is a valid basis for the insinuation on cross-examination.”). Because the state did not follow the requisite procedures, the prosecutor’s questioning was clearly impermissible and constituted plain error. Therefore, the prosecutor’s cross-examination constituted misconduct.
I also disagree with the court’s conclusion that the prosecutor did not commit misconduct in her closing argument to the jury. Again, we use the plain error analysis because Fields did not object during the closing argument. Mayhorn, 720 N.W.2d at 785. Our case law is clear that misstating the burden of proof constitutes prosecutorial misconduct. State v. Hunt, 615 N.W.2d 294, 302 (Minn.2000). The court contends that Fields failed to point to any explicit misstatement of the burden of proof, but the prosecutor’s statement about Fields’ inability to explain KW.’s motive for claiming that he sexually assaulted her erroneously suggested that Fields had the burden to explain why K.W. would lie.
Fields had no burden to explain KW.’s motives for claiming that he sexually assaulted her because he had no burden to present any evidence whatsoever. See In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). But the prosecutor implied in her closing argument that Fields had to explain why K.W. would claim he sexually assaulted her when she pointed out that, although Fields denied assaulting the victim, “[he] couldn’t come up with why [he] thought [K.W.] would do this.” The prosecutor then immediately told the jury to think about the fact that Fields gave no explanation for KW.’s motives, stating, “You think about that when you go back in the room.” The prosecutor thus left the jury with a false impression of the state’s burden of proof, implying that the defendant had the burden to explain K.W.’s motives.
The prosecutor’s argument also left the jury with the impression that it had to conclude that K.W. was lying in order to acquit Fields. We have held that it is plain error for a prosecutor to ask “were they lying” questions when the questions “shifted the jury’s focus by creating the impression that the jury must conclude that * * * witnesses were lying in order to acquit [the defendant].” State v. Morton, 701 N.W.2d 225, 235 (Minn.2005).
The fact that the prosecutor emphasized the importance of Fields’ testimony in the context of a misleading statement of the burden of proof only emphasizes that statement’s problematic nature. The prosecutor began her closing by explaining that K.W. had been violated and then said that the true issue in the case was witness credibility and whether the defendant had sexually assaulted K.W. She said, “We’ll talk about those things as credibility and why in the world would [K.W.] say such a thing if it weren’t true.” She then discussed the elements of the case, concluded that most elements were not disputed, and explained that the disputed issue in the case was “whether or not the Defendant *789intentionally penetrated [K.W.] in this case.” Directly following that statement the prosecutor discussed Fields’ testimony and the fact that Fields could not explain KW.’s motives. The prosecutor’s emphasis on Fields’ testimony, and the statement itself, likely presented a source of confusion for the jury about the burden of proof and whether the defendant was required to explain KW.’s motives. See State v. Strommen, 648 N.W.2d 681, 690 (Minn. 2002) (noting that, even though the court correctly instructed the jury on the burden of proof, the prosecutor’s misstatement of the burden of proof “presented a source of confusion for the jury and may have played a role in the decision to convict”). Even though a prosecutor is permitted to discuss witness credibility, a prosecutor is not permitted to insinuate that a defendant has the burden of explaining the motives of another witness. Much like the “were they lying” questions in Morton, the prosecutor’s comment constituted plain error and thus prosecutorial misconduct.
Because the prosecutor’s misconduct constituted plain error, the burden shifts to the state to demonstrate that the misconduct did not affect substantial rights. State v. Ramey, 721 N.W.2d 294, 302 (Minn.2006). Error affects substantial rights if there is a reasonable likelihood that the absence of misconduct would have had a significant effect on the jury’s verdict. Id. When determining whether a prosecutor’s misconduct affected substantial rights, we examine the strength of the total evidence against the defendant. See State v. Washington, 521 N.W.2d 35, 40 (Minn.1994). The evidence in this case came down to Fields’ word against KW.’s. The prosecutor’s cross-examination about Fields’ theft from his employer was intended to and certainly could have affected the jury’s perception of his credibility, especially in light of the fact that the court instructed the jury as if the misconduct were a previous conviction. In addition, the prosecutor’s misstatement of the burden of proof in the closing argument presented yet another barrier for Fields. Given the record presented and misconduct involved, I conclude that the state did not meet its burden of proving that Fields’ substantial rights were not affected. See Ramey, 721 N.W.2d at 302. Rather, the totality of the evidence indicates that Fields’ substantial rights were affected and that the prosecutor’s misconduct affected the outcome of the trial. Each instance of misconduct individually justifies reversal and a new trial; cumulatively, they demand it.
I respectfully dissent.