Dear Colleagues,
Attached is our newest Martine Law Training Update, titled:
“Prosecutorial Misconduct: 15 Categories Every Attorney and Judge Should Recognize and Avoid”
This is one of the most comprehensive training updates I have produced to date. At 23 pages, it is designed not only as an informative resource but also as a statewide training tool for prosecutors, defense attorneys, and judges.
Although this update is titled Prosecutorial Misconduct, the focus is not on labels but on impact. Whether the conduct is characterized as error or misconduct matters less than the effect, because either, when serious enough, can deprive a defendant of a fair trial. Misconduct implies a deliberate or reckless violation; error may reflect an honest mistake. But both threaten the same outcome: injustice.
For that reason, this update does not attempt to parse whether a particular instance should be labeled “misconduct” or “error.” That distinction is best left to the appellate courts. Our focus here is practical: identifying improper prosecutorial conduct in all its forms so trial attorneys can recognize it, object to it, and preserve the issue for review.
The deeper concern, and the reason this update was created, is that these problems are not new. For decades, the Minnesota Supreme Court has made clear that prosecutors are not simply advocates seeking victory, but officers of justice with a duty to safeguard fairness—even when doing so weakens the State’s case. As the Court has long reminded us: “The prosecutor’s interest in a criminal prosecution is not that it shall win a case, but that justice shall be done.”
Despite this clear guidance, the same forms of misconduct continue to appear in trial records with troubling frequency. The problem is not a lack of clarity in the law—the rules are well-established—but a repeating generational pattern. Each new wave of prosecutors, eager to prove themselves in court, repeats the same mistakes made by those before them. The result is a predictable cycle: misconduct occurs, defense counsel objects, trial courts rule, and appellate courts issue yet another opinion restating principles that have been settled for decades. Most of these opinions today are nonprecedential, not because the law is unsettled, but because the errors are the same ones we have seen for generations.
This update is designed to help break that cycle. It sets out the 15 most common categories of prosecutorial misconduct seen in Minnesota courts, illustrated with leading cases, examples, and practice points. Together, these categories form a shared framework for all trial participants—prosecutors, defense attorneys, and judges—to recognize misconduct when it occurs, understand its significance, and take corrective action in real-time.
a) Prosecutors can use this update as an internal training tool to ensure advocacy remains effective while still within ethical boundaries.
b) Defense attorneys can use it to recognize misconduct as it occurs, object promptly, and preserve a clean record for appeal.
c) Judges can use it to guide intervention, remembering that the Minnesota Supreme Court has made clear that trial courts also bear responsibility for curbing misconduct—even when counsel fails to object.
The 15 Categories of Misconduct Covered in this Update:
- Shifting the Burden of Proof
- Injecting Issues Broader Than Guilt or Innocence
- Accusing Defendant of Tailoring Testimony
- Asking “Were They Lying” Questions
- Eliciting Inadmissible Evidence
- Misstating the Burden of Proof
- Misstating the Presumption of Innocence
- Expressing a Personal Opinion – Vouching
- Belittling the Defense
- Inflaming the Passions of the Jury
- Commenting on a Defendant’s Failure to Testify
- Misusing Spreigl Evidence
- Speculating About Events Absent a Factual Basis
- Eliciting Improper or Highly Prejudicial Testimony
- Injecting Self into Proceedings: “I,” “We,” “Me”
Importantly, these ethical limits do not require prosecutors to be bland, formulaic, or restrained in their passion. Minnesota courts have repeatedly affirmed that vigorous advocacy is entirely proper—so long as it remains grounded in admissible evidence and accurate law.
I encourage you to read and share this update with your colleagues. Whether you are a prosecutor, defense attorney, or judge, this resource is designed to promote more effective advocacy, fewer repeated mistakes, and a stronger commitment to justice and fairness in every courtroom.
You can read or download the full 23-page update here:
📄 Click here for Training Update 25-9 – Prosecutorial Misconduct
Special Thanks to Martine Law attorneys Luke McClure, Tyler Martin, Abbey Rostamo, and Kalen Best for generously contributing their insight and expertise to this update.
Acknowledgment: This update builds upon training materials first developed in 2005 by then–Assistant Hennepin County Attorneys Michael K. Walz, Jean E. Burdorf, and David C. Brown. Their work laid an important foundation for understanding the nature and scope of prosecutorial misconduct in Minnesota.
Martine Law Training Updates will continue to focus on key areas of litigation, including Criminal and Family Law, Evidence and Procedure, and Trial Advocacy. With a subscriber base of nearly 4,000 attorneys, judges, and legal professionals, these updates reflect our firm’s commitment to the belief that Legal Education is the Heart of the Judiciary.
Warm regards,
Alan F. Pendleton
Of Counsel, Martine Law Firm
Director of Mentorship and Education
Former District Court Judge
alan@xmartinelaw.com
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