Offering evidence – wait for the court’s ruling.

A recent decision from the Minnesota Supreme Court, State of Minnesota v. Radke, A09-0834 (Minn. September 12, 2012), contains a good reminder: do not assume you know what the court will do and withdraw evidence before you have received a ruling. In Radke, an appeal from a first-degree murder conviction and the denial of postconviction relief, the appellant argued that he had received ineffective assistance of counsel because his attorney did not seek to introduce evidence of the victim’s prior reputation and acts of violence.  The Minnesota Supreme Court considered the ineffective assistance argument under the appropriate standard, found in Strickland v. Washington, 466 U.S. 668, 694 (1984), and found that the appellant failed to establish a reasonable probability that the outcome would have been different if his attorney had offered the evidence.  The Court declined to consider whether it was error for the trial court not to admit evidence of the victim’s reputation and prior acts because the record showed that the evidence had not been formally offered.

As Minnesota Rule of Evidence 103 states, in order to later claim error in the trial court’s failure to accept evidence into the record, the evidence must have been presented to the court in a clear manner and the court must have made a definitive ruling on the record excluding that evidence.

There may be circumstances in which it is appropriate to concede that certain evidence should not be admitted. This may have been one of those instances. However, the Radke case is a good reminder of a basic rule of trial evidence: what isn’t offered cannot be received.