Honestly?: Court of Appeals of Minnesota Finds Prosecution Improperly Bolstered Victim’s Credibility

Similar to its federal counterpart, Minnesota Rule of Evidence 608(a) provides that

The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.

In other words, under Rule 608(a), a witness’s credibility cannot be bolstered until it has been attacked. In State v. Varnado, 2013 WL 6839693 (Minn.App. 2013), this protocol was not followed with a witness for the prosecution. But was this error enough for a reversal?

In Varnado, Donzell Varnado was charged with two counts of first-degree criminal sexual conduct. At trial, K.C., the alleged victim of these crimes, testified as a witness for the prosecution. Thereafter, before the defense impeached K.C., the prosecution called K.C.’s mother and asked her,

“[W]ith your experience obviously as [K.C.’s] mother, would you describe [K.C.] as a truthful person?”

K.C.’s mother then responded,

“Yeah. She always seemed, I mean, she tells the truth.”

The Court of Appeals of Minnesota did not even need to find that this testimony was improperly received because “[t]he state concede[d] that the district court committed plain error by admitting K.C.’s mother’s statement because K.C.’s character for truthfulness was not attacked during the trial.” The state, however, “contend[ed] that the error did not affect appellant’s substantial rights.”

The court agreed, concluding that

It is unlikely that this one statement affected the outcome of the case. K.C. testified and provided a detailed explanation of the offense. Appellant also testified and provided his own version of the events. The jury was able to observe both K.C. and appellant, and its verdict indicates that it found K.C.’s testimony to be credible. Thus, the district court’s error did not affect appellant’s substantial rights.

-CM