                                STATE OF MINNESOTA
                                                                          fl  May 5, 2016

                                                                             Om:cEOF
                                  IN SUPREME COURT                        ArPB..lAlECcurrs
                                       ADM10-8047


ORDER PROMULGATING AMENDMENTS TO THE
MINNESOTA RULES OF EVIDENCE

                                        ORDER


       The Advisory Committee for the Rules of Evidence has recommended amendments

to the Minnesota Rules of Evidence, in Articles 6, 7, and 8 of those rules. By an order filed

January 25,2016, the court opened a public comment period on the proposed amendments.

Written comments regarding those amendments were filed by the Minnesota County

Attorneys Association. The court has considered the committee's recommendations and

the comments. Based on all of the files, records, and proceedings herein,

       IT IS HEREBY ORDERED that the attached amendments to the Rules of Evidence

be, and the same are, prescribed and promulgated to be effective as of July 1, 2016. The

Rules as amended shall apply to all matters filed on or after the effective date of the

amendments. The inclusion of committee comments is for convenience and does not

reflect court approval of those comments.

      Dated: May 5, 2016                         BY THE COURT:


                                                      4~
                                                 Lorie S. Gildea
                                                 Chief Justice
                        Amendments to the Minnesota Rules of Evidence

   [Note: In the following amendments, deletions are indicated by a line drawn through the
              words and additions are indicated by a line drawn under the words]


Rule 606. Competency of Juror as Witness

           (a)        At the trial. A member of the jury may not testify as a witness before that jury
in the trial of the case in which the juror is sitting. If the juror is called to so testify, the opposing
party shall be afforded an opportunity to object out of the presence of the jury.

          (b)       Inquiry into validity of verdict or indictment. Upon an inquiry into the
validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring
during the course of the jury's deliberations or to the effect of anything upon that or any other
juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or
indictment or concerning the juror's mental processes in connection therewith, except that a juror
may testify on the question whether extraneous prejudicial information was improperly brought to
the jury's attention or whether any outside influence was improperly brought to bear upon any
juror, or as to any threats of violence or violent acts brought to bear on jurors, from whatever
source, to reach a verdict, or as to whether a juror gave false answers on voir dire that concealed
prejudice or bias toward one of the parties, or in order to correct an error made in entering the
verdict on the verdict form. Nor may a juror's affidavit or evidence of any statement by the juror
concerning a matter about which the juror would be precluded from testifying be received for these
purposes.


                                       Committee Comment-1989

          The rule is based on the same rationale that gives rise to rule 605. However, when a
       juror is called as a witness an objection is required by the party opposing this testimony.
       Opportunity should be provided for an objection out ofthe presence of the jury.

          Rule 606(b) is a reasoned compromise between the view that jury verdicts should be
       totally immunizedfrom review in order to encourage freedom ofdeliberation, stability, and
       finality ofjudgments; and the necessity for having some check on the jury's conduct. Under
       the rule, the juror's thought processes and mental operations are protected from later
       scrutiny. Only evidence of the use of extraneous prejudicial information or other outside
       influence that is improperly brought to bear upon a juror is admissible. In criminal cases
       such an intrusion on the jury's processes on behalf of the accused might be mandated by
       the Sixth Amendment. See Parker v. Gladden, 385 U.S. 363, 364, 87 S.Ct. 468, 470, 17
       L.Ed.2d 420, 422 (1966).

         The application of the rule may be simple in many cases, such as unauthorized views,
       experiments, investigations, etc., but in other cases the rule merely sets out guidelines for
       the court to apply in a case-by-case analysis. Compare Olberg v. Minneapolis Gas Co.,
       291 Minn. 334, 340, 191 N W2d 418, 422 (1971) in which the Court stated that evidence
       of a juror's general "bias, motives, or beliefs should not be considered" with State v.
      Hayden Miller Co .. 263 Minn. 29, 35, 116 NW2d 535, 539 (1962) in which the Court
      holds that bias resulting from specialized or personal knowledge of the dispute and
      withheld on voir dire is subject to inquiry.

         The rule makes the juror's statements by way ofaffidavit or testimony incompetent. The
      rule does not purport to set out standards for when a new trial should be granted on the
      grounds ofjuror misconduct. Nor does the rule set the proper procedure for procuring
      admissible informationfromjurors. In Minnesota it is generally considered improper to
      question jurors after a trial for the purpose of obtaining evidence for a motion for a new
      trial. Ifpossible misconduct on behalf ofa juror is suspected, it should be reported to the
      Court, and if necessary the jurors will be interrogated on the record and under oath in
      court. Schwartz v. Minneapolis Gas Co., 258 Minn. 325, 328, 104 N W2d 301, 303 (1960);
      Olberg v. Minneapolis Gas Co., 291 Minn. 334, 343, 191 NW2d 418, 424 (1971);
      Uinn.R.Oim.P. 26JJ3, st:thd. I9(6)Minn. R. Crim. P. 26.03. subd. 20(6). See also rule 3.5
      of the Rules of Professional Conduct in regard to communications with jurors. The
      amended rule allows jurors to testify about overt threats ofviolence or violent acts brought
      to bear on jurors by anyone, including by other jurors. Threats of violence and use of
      violence is clearly outside ofthe scope ofthe acceptable decisionmaking process ofa jury.
      The pressures and dynamics ofjuror deliberations will frequently be stressful and jurors
      will, ofcourse, become agitatedfrom time to time. The trial court must distinguish between
      testimony about "psychological" intimidation, coercion, and persuasion, which would be
      inadmissible, as opposed to express acts or threats of violence. See State v. Scheerle, 285
      NW2d 686 (Minn.1979); State v. Hoskins, 292 Minn. 111, 193 NW2d 802 (1972).


                                     Commiuee Comment-2016

        Consistent with the federal rule, Rule 606(b) has been amended to provide that juror
      testimony may be used to prove that the verdict reported was the result of a mistake in
      entering the verdict on the verdict (arm. In addition. in accordance with the common law.
      the rule has been amended to provide that jurors may testify or provide affidavits "when
      there was some indication that a juror gave false answers on voir dire which concealed
      prejudice or bias toward one ofthe parties and thereby deprived that party ofa fair trial. "
      State v Stofflet 281 N W2d 494. 498 (Minn. 1979) (quoting Note. 4 Wm. Mitchell L. Rev.
      417. 432-33).




Rule 609. Impeachment by Evidence of Conviction of Crime

      ***
                                     CommiUee Comment-2016

        Rule 609(a) does not prohibit impeachment through an unspecified felony conviction if
      the impeaching party makes a threshold showing that the underlying conviction falls into
      one ofthe two categories ofadmissible convictions under rule 609(a). However. a party
      need not always impeach a witness with an unspecified felony conviction. Instead. "the
      decision about what details, if any. to disclose about the conviction at the time of
      impeachment is a decision that remains within the sound discretion ofthe district court. "



                                                   2
       considering whether the probative value ofadmitting the evidence outweighs its prejudicial
       effect. "If a court finds that the prejudicial effect of disclosing the nature of the felony
       conviction outweighs its probative value. then it may still allow a party to impeach a
       witness with an unspecified felony conviction if the use of the unspecified conviction
       satisfies the balancingtestofRule 609(a)(])." State v Hill. 801 N W.2d 646.651-53 (Minn.
       201]).


Rule 701. Opinion Testimony by Lay Witness

          If the witness is not testifying as an expert, the witness' testimony in the form of opinions
or inferences is limited to those opinions or inferences which are (a) rationally based on the
perception of the witness.;. 6flEl.-{b) helpful to a clear understanding of the witness' testimony or the
determination of a fact in issue: and (c) not based on scientific. technical. or other specialized
knowledge within the scope of Rule 702.


                                       Committee Comment-1977

           The rule is consistent with existing practice in Minnesota. The rule permits testimony by
       means ofopinion and inference when it is based on firsthand knowledge and will be helpful
       to an effective presentation ofthe issues. Because the distinction between fact and opinion
       is frequently impossible to delineate, the rule is stated in the nature ofa general principle,
       leaving specific application to the discretion of the trial court.

                                       Committee Comment-2016

         Rule 701 (c) comes from the 2000 amendment to the Federal Rules ofEvidence. Parties
       should not avoid the foundational requirements ofRule 702 and the pre-trial disclosure
       requirements ofMinn. R. Civ. P. 26. OJ {b) and Minn. R. Crim. P. 9. 01. 9. 02 by introducing
       testimony based on scientific. technical. or specialized knowledge under this rule. The rule
       addresses the nature ofthe testimony. and is not an attempt to characterize a particular
       witness. As stated in the Federal Advisory Committee Note:

            The amendment does not distinguish between expert and lay witnesses. but rather
            between expert and lay testimony. Certainly it is possible for the same witness
            to provide both lay and expert testimony in a single case. See. e.g.. United States
            v. Figueroa-Lopez. 125 F.3d 1241. 1246 (9th Cir. 1997) Oaw enforcement agents
            could testifv that the defendant was acting suspiciously, without being qualified
            as experts: however. the rules on experts were applicable where the agents
            testified on the basis of extensive experience that the defendant was using code
            words to refer to drug quantities and prices).

         Non-expert inference or opinion testimony tends to fit into two separate categories.
       First. as a matter ofnecessity. witnesses may testify in the form ofa generalized opinion
       about common matters they observed such as speed, size, distance. how they &It or how
       others appeared. intoxication. mental ability and numerous other subjects. ifhelpful.

        The second category involves testimony from a skilled layman. The Federal Advisory
       Committee Note describes this as testimony, not based on specialized knowledge. but based


                                                     3
       on "particularized knowledge" developed in day- to-day affoirs, including testimony from
       an owner about the value ofa business, house, or chattel. See, e.g., Vreeman v. Davis. 348
       N. W.2d 756, 757-58 (Minn. 1984) (allowing owner to testifY about the value o(a mobile
       home); Ptaceky. Eqrfhsoils. Inc, 844 N. W.2d 535, 539-40 (Minn. Ct. App. 2014) (allowing
       experienced farmers to testifY about the cause oftheir crop failure).

          The amendment is not a change from past practice but is designed to assist lawyers and
       judges in the line-drawing process distinfJUishing between lay and expert testimony. In
       deciding whether the testimony tits under Rule 701 or 702, the trial judge should initially
       consider the complexity of the subject area, although some subject areas, such as
       handwriting or intoxication. are susceptible to both lay and expert testimony. The inguiry
       should center on the extent to which the testimony involves "inferences or thought
       processes not common to everyday life." See State y. Qrown. 836 S. W.2d 530. 549 O'enn.
        1992) ("The distinction between an expert and a non-expert witness is that a non-expert
       witness's testimony results from a process of reasoning familiar in everyday life. and an
       expert's testimony results ftom a process of reasoning which can be mastered only by
       specialists in the field").

           Finally, to guali(y under Rule 701 both the witness' understanding about the historical
       facts as well as the underlying fOundation tor making the inference or opinion must derive
        from the witness' personal experience and personal knowledge. See fierson y. Eds(rom.
       160 N. W.2d 563. 566 (Minn. 1968) (precluding police oQicer, who was not an eyewitness
       to the accident, ftom testifYing about the speed ofthe vehicle); Marsh v. Henriksen. 7
       N. W.2d 38 7, 389 (Minn. 1942) (excluding passenger's testimony about the speed of a car
       when the witness lacked personal knowledge and experience to judge speed at the time of
       the accident).



Rule 804. Hearsay Exceptions; Declarant Unavailable

       ***
          (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the
declarant is unavailable as a witness:
          (1) Former testimony. In a civil proceeding testimony given as a witness at another
       hearing of the same or a different proceeding, or in a deposition taken in compliance with
       law in the course of the same or another proceeding, if the party against whom the
       testimony is now offered or a party with substantially the same interest or motive with
       respect to the outcome of the litigation, had an opportunity and similar motive to develop
       the testimony by direct, cross, or redirect examination. In a criminal proceeding involving
       a retrial of the same defendant for the same or an included offense, testimony given as a
       witness at the prior trial or in a deposition taken in the course thereof.
          (2) Statement under belief of impending death. In a prosecution for homicide or in a
       civil action or proceeding, a statement made by a declarant while believing that the
       declarant's death was imminent, concerning the cause or circumstances of what the
       declarant believed to be impending death.
          (3) Statement against interest. A statement which was at the time of its making so far
       contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the


                                                    4
declarant to civil or criminal liability, or to render invalid a claim by the declarant against
another, that a reasonable person in the declarant's position would not have made the
statement unless believing it to be true. A statement tending to expose the declarant to
criminal liability and offered in a criminal case to eJ(61:llpate the aee1:1sed is not admissible
unless corroborating circumstances clearly indicate the trustworthiness of the statement.
  (4) Statement ofpersonal or family history. (A) A statement concerning the declarant's
own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or
marriage, ancestry, or other similar fact of personal or family history, even though
declarant had no means of acquiring personal knowledge of the matter stated; or (B) a
statement concerning the foregoing matters, and death also, of another person, if the
declarant was related to the other by blood, adoption, or marriage or was so intimately
associated with the other's family as to be likely to have accurate information concerning
the matter declared.
  (5) [Intentionally left blank]
  (6) Forfeiture by wrongdoing. A statement offered against a party who wrongfully
caused or acquiesced in wrongfully causing the declarant's unavailability as a witness and
did so intending that result.



                  Advisory Committee Comment-2016 Amendments

  Consistent with the 2010 amendment to the federal rule. Rule 804(b)(3) has been
amended to provide that the corroborating circumstances requirement applies to all
declarations against penal interest offered in criminal cases. As the federal advisory
committee explained: "A unitary approach to declarations against penal interest assures
both the prosecution and the accused that the Rule will not be abused and that only reliable
hearsay statements will be admitted under the exception. "

  Rule 804(b)(6) has been added to codifY the forfeiture by wrongdoing exception. Rule
804{b)(6) is consistent with the Minnesota Supreme Court's decisions addressing waiver
of the sixth amendment right to confrontation. See State v. Cox. 779 N W2d 844. 851
(Minn. 2010) (stating that (oifeiture by wrongdoing requires the state to prove that the
declarant-witness is unavailable. that the defendant engaged in wrongful conduct. that the
wrongful conduct procured the unavailability of the witness. and that the defendant
intended to procure the unavailability o(the witness); State v Her, 781 N W2d 869 (Minn.
2010).




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