• December 30, 2015

Mystery_January_1934Update (12/30/2015): Here, linked, is the solution to the mystery of how the Minnesota Supreme Court would rule on the admissibility of “Alford pleas” to criminal charges in later related civil cases. (I explain what an “Alford plea” is in the original post, below.)

Key to the Court’s decision: “The [trial court judge] enjoys broad discretion to determine whether to admit evidence under Rule 403…” (Rule 403 is the evidence rule that allows for the exclusion of evidence if its “probative value” is outweighed by its “prejudicial effect.”) Justice Lillehaug dissented from the decision, arguing that the decision to exclude an “Alford plea” was an abuse of the trial court’s discretion under the circumstances. Justice Lillehaug writes:

Not only did the [trial court] profoundly mischaracterize the Alford plea, it also dramatically overstated the danger of prejudice and confusion that would have resulted had the jury been allowed to learn about Liebsch’s guilty plea and conviction….By assuming that Minnesota juries simply can’t understand, will give undue weight to, or will be ‘distracted’ by an Alford plea, we give jurors too little credit…there was any risk of prejudice, confusion, or distraction in this case, it came from the

jury having only half the story…”

The key take-away here for practitioners, in my opinion, is that the Court’s majority and dissenter agree that the decision is committed to the trial court’s discretion. So, on different facts, different trial courts can, consistent with the law, decide later cases in favor of admitting Alford pleas into evidence. While the Supreme Court could have and did not “open the door,” neither did it close it.

Original post (March 4, 2015): Judging from Hollywood, television, and pop culture, innocent people are constantly falsely charged with (or at least suspected of) crimes. In almost every mystery drama, the evidence points to “Red Herring” as the culprit. It takes our hero, a character with supernatural powers of deduction and observation, to look past the incriminating distractions to uncover the actual cleverly concealed malefactor.

Sometimes, “Red” is covered in blood, his prints are on the weapon, his alibi is “implausible” (to say the least), and he has every motive in the world….


In the real world, no doubt that this actually happens: the evidence appears overwhelming, the accused foresees a high probability of a guilty verdict, but he is innocent. What should he do? Confess to the crime he did not commit? Is there a way by which he can avoid the trial and just say, “I won’t admit to something I didn’t do, but I don’t want to go to trial so you can mete out a punishment to me as if I were found guilty?”

Since a 1970 United States Supreme Court decision, North Carolina v. Alford, we have had a rule so a criminal defendant can accept criminal punishment without accepting guilt, a so-called “Alford Plea.” “[T]here are situations” in which a decision to plead guilty despite a claim of innocence is a rational decision,” the U.S. Supreme Court recognized.

A related question arises: when “Red” is sued in a civil case for the criminal conduct to which he responded with an Alford plea, can the plaintiff offer Red’s Alford plea into evidence in the civil case?

Washington County Gary R. Schurrer thought not in the case of Jane Doe 136 v. Liebsch. A unanimous three-judge panel of the Minnesota Court of Appeals agreed. But now the Minnesota Supreme Court has granted the plaintiff’s petition of review in the case.

It’s an interesting question. We cannot offer evidence of a criminal defendant’s invocation of his Fifth Amendment right against self-incrimination in his criminal case, but we can in a civil case against him. Maybe we can and should have the same relaxed evidentiary rule in civil suits for Alford pleas?

I take no position on the issue. It seems pretty clear that, in the real world as opposed to Sherlock Holmes etc., “Red Herring” is often the bad guy who really committed the crime. For one reason or another, he just won’t admit it and we let him suffer the criminal punishment for the crime for which he claims innocence. As to these perps, we should have no reluctance to allow their Alford pleas used against them in later civil suits, I would think. On the other hand, what about the “falsely accused but super suspicious,” the innocent “Red Herrings”?

And what about policies in our criminal justice system, which benefits from Alford pleas to clear obstacles to mutually acceptable settlements of criminal charges short of trial? If we allow Alford pleas as evidence in later civil suits, will there be an impact on the use of them in criminal cases? On the other hand, what is the data on the number of Alford pleas in a given jurisdiction followed by civil litigation? Accused criminals tend not to have piles of money to pay civil judgments…

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