Trial Courts May Permit Alternative Perpetrators to Invoke the Fifth Before the Jury Once Hawkins Is Satisfied: Discretion, Not a Categorical Bar

Case: State of Minnesota v. Larry Joe Foster

Citation: 20 N.W.3d 6 (Minn. 2025)

Court: Supreme Court of Minnesota

Date: April 30, 2025

Author: Procaccini, J. (Hudson, C.J., and Gaïtas, J., concurring)

Introduction

In a significant clarification of Minnesota law at the intersection of a defendant’s right to present a complete defense and a third party’s right against compelled self-incrimination, the Minnesota Supreme Court held that trial courts have discretion—subject to the ordinary rules of evidence—to allow a defendant to call an identified alternative perpetrator to the stand even when it is known the witness will invoke the Fifth Amendment in front of the jury. Rejecting a categorical prohibition, the court emphasized that such invocations can, in some circumstances, carry probative value, particularly where the defendant has already satisfied the Hawkins threshold for presenting alternative perpetrator evidence.

The decision arises from the prosecution of Larry Joe Foster for second-degree intentional murder. Foster’s defense strategy centered on pointing to R.J. as the alternative perpetrator. After the district court found Foster met the Hawkins test to present that defense, it nevertheless refused to permit Foster to call R.J. before the jury to invoke the Fifth Amendment—citing lack of probative value and, alternatively, cumulativeness. The Supreme Court’s opinion clarifies the governing legal standard and affirms the conviction on the trial court’s alternative Rule 403 ground.

Summary of the Opinion

• Forfeiture of the nontestimonial-appearance issue: Foster’s request to call R.J. solely for the jury to observe his physical characteristics and gait (a non-testimonial purpose) was not preserved. The district court had reserved ruling, Foster did not renew the request, and he did not appeal the reservation; thus, the issue was forfeited.
• New rule on calling an alternative perpetrator who will invoke the Fifth: The Court rejected the court of appeals’ view (based on State v. Moose) that there is a categorical bar preventing a defendant from calling a witness known to invoke the Fifth. The Court held that in alternative-perpetrator cases where Hawkins is satisfied, a trial court has discretion—applying the ordinary rules of evidence—to permit calling the witness even if the sole expected “testimony” is invocation of the Fifth.
• Application to Foster: Although the district court erred in treating Fifth invocations as categorically non-probative, it alternatively excluded the evidence as needlessly cumulative under Rule 403. That alternative ground was an adequate and independent basis to deny Foster’s request, and the Supreme Court therefore affirmed.
• Concurring view: Justice Gaïtas, joined by Chief Justice Hudson, agreed with the new rule and the forfeiture holding but objected to affirmance on an unbriefed alternative Rule 403 ground. The concurrence would have affirmed on harmless-error grounds given the strength of the State’s case and the minimal additional value of calling R.J. to the stand.

Factual and Procedural Background

Daniel Bradley was found dead in his Minneapolis home after a fire; investigators concluded he was murdered. A blood trail led out of the house and matched Foster’s DNA. Foster’s abandoned truck contained substantial blood, including a shirt with both Bradley’s and Foster’s DNA. Upon arrest, Foster had cuts and blood on his watch consistent with both Bradley and Foster.

Charged with second-degree intentional murder, Foster admitted being present but claimed that R.J. was the killer. The district court agreed Foster met the two-step Hawkins test for admission of alternative perpetrator evidence: (1) evidence with an inherent tendency to connect R.J. to the crime, and (2) admissibility under the ordinary rules of evidence. Foster proffered his eyewitness account, R.J.’s criminal history, and photographs; he also subpoenaed R.J. to testify.

R.J. indicated in a pretrial, out-of-jury proceeding that he would invoke the Fifth if called. The court denied Foster’s request to put R.J. before the jury to invoke the privilege, reasoning first that such an invocation lacks probative value and, alternatively, that it was cumulative given Foster’s other evidence. Foster’s conditional request to call R.J. for a nontestimonial appearance (to observe physical features and gait) was reserved; because the State never challenged identity, Foster never renewed it. The jury convicted Foster, and the court of appeals affirmed, reading Moose to impose a categorical bar. The Supreme Court granted review.

Analysis

1) Precedents and Authorities Cited

• Alternative perpetrator evidence: State v. Hawkins (1977) sets the two-part test: the defendant must present evidence inherently tending to connect another person to the crime, and the evidence must be admissible under the ordinary rules of evidence. The Court also referenced State v. Jenkins (2010) and State v. Carbo (2024) in discussing the Hawkins framework.
• Compulsory process and complete defense: The defendant’s constitutional rights derive from the Sixth Amendment (compulsory process) and due process under the Fourteenth Amendment and Minnesota Constitution. Cases include Washington v. Texas, Pennsylvania v. Ritchie, Chambers v. Mississippi, California v. Trombetta, United States v. Scheffer, Holmes v. South Carolina, State v. Beecroft, State v. Reese, State v. Richards, State v. Swaney, State v. Pass, and Burrell v. State. These authorities underpin the principle that the right to present a defense is robust but not absolute, and is bounded by evidentiary rules aimed at fairness and reliability.
• Self-incrimination: The Fifth Amendment and Minn. Const. art. I, § 7 protect against compelled self-incrimination, applying only to compelled testimonial communications (Fisher v. United States; State v. Heinonen; State v. Borg; Salinas v. Texas). The Court acknowledged it has not previously decided whether a witness must be made to invoke the privilege before the jury.
• Prosecutors calling Fifth-invoking witnesses: State v. Mitchell (1964) and Namet v. United States (1963) condemn a prosecutor’s practice of calling a witness solely to elicit a Fifth invocation to prejudice the defendant. Mitchell emphasizes the potential for unfair inculpatory inference, risking the integrity of the verdict.
• Scope of Moose (1978): The Court declined to read State v. Moose as a categorical prohibition against calling Fifth-invoking witnesses. Moose stands for the narrower proposition that a defendant’s rights do not trump a witness’s Fifth Amendment privilege; a defendant cannot compel self-incriminating testimony.
• Other jurisdictions: The Court favorably cited decisions allowing discretion for defendants to call Fifth-invoking alternative perpetrators, including Gray v. State (Md. 2002), State v. Herbert (W. Va. 2014), Rios-Vargas v. People (Colo. 2023), State v. McDaniel (Ariz. 1983), and People v. Thomas (N.Y. 1980). It also noted countervailing concerns, as in State v. Heard (Iowa 2019), to highlight the need for guardrails.
• Minnesota’s use-immunity statute: Minn. Stat. § 609.09 (use immunity), as explained in Bolstad v. State and State v. Morales, provides that if the State compels testimony, the witness receives use immunity coextensive with the Fifth Amendment.
• Evidence rules and standard of review: Minn. R. Evid. 401–403 govern relevance, probative value, unfair prejudice, and cumulativeness. On appeal, evidentiary rulings are reviewed for abuse of discretion (State v. Profit; State v. Hallmark; State v. Obeta). The Court relied on cases such as State v. Martin and State v. Zumberge to illustrate proper Rule 403 exclusions for cumulative evidence.

2) The Court’s Legal Reasoning

The Supreme Court’s opinion proceeds in three steps: forfeiture, clarification of the governing rule, and application.

1. Forfeiture: The nontestimonial-appearance issue was not preserved. The trial court reserved ruling, the defense did not renew the request when the State did not challenge identification, and the question was not pursued on appeal. There was no plain error, given the absence of authority guaranteeing the right to parade a non-testifying witness before the jury for observation.
2. Clarifying the rule on calling a Fifth-invoking alternative perpetrator:
   • Mitchell’s prosecutor-focused bar does not govern the defense: The danger in Mitchell is a prosecutor manufacturing prejudicial inferences against the accused by calling a Fifth-invoking witness. That inculpatory risk does not translate automatically when the defense calls a witness in service of an alternative perpetrator theory.
   • Key differences between prosecution and defense: The Court stressed two: (1) the inference from a Fifth invocation can be exculpatory for the accused, unlike in the Mitchell scenario; and (2) if a defense-called witness invokes the Fifth, the prosecution has tools (e.g., seeking an immunity order) to compel testimony and blunt improper inferences, whereas a defendant cannot compel a witness to self-incriminate.
   • Probative value is possible: An invocation can be probative when viewed with other evidence (Minn. R. Evid. 401; State v. Schulz). This is especially true because the Hawkins threshold ensures the alternative perpetrator is meaningfully connected to the crime.
   • Constitutional necessity of discretion: A categorical ban would arbitrarily restrict the due process right to present a complete defense beyond what Rules 402 and 403 already accomplish and would be inconsistent with fundamental fairness in alternative-perpetrator cases.
   • Guardrails: The Court limited the discretion to cases in which the defendant has satisfied Hawkins, and it required trial judges to apply Rules 402 and 403 (including prejudice, confusion, or cumulativeness). The Moose principle remains intact: no one can be compelled to provide incriminating testimony.
3. Application to Foster: The district court erred in assuming invocations are categorically non-probative. Nonetheless, it also exercised independent discretion to exclude the evidence as needless cumulation under Rule 403, given Foster’s extensive alternative perpetrator proof (his eyewitness account, R.J.’s history, photos, and video placing R.J. at the house earlier that day). Affording broad deference to trial management and Rule 403 balancing, the Supreme Court affirmed on that alternative ground.

3) Impact and Practical Implications

Doctrinal impact in Minnesota:

• No categorical bar: Defendants who meet Hawkins may, in the trial court’s discretion, call an alternative perpetrator knowing the witness will invoke the Fifth before the jury, even if eliciting the invocation is the sole purpose.
• Emphasis on case-by-case Rule 403 analysis: Courts must balance probative value against unfair prejudice, confusion, delay, or cumulative presentation. This creates space for exculpatory inferences while safeguarding trial fairness.
• Clarified scope of Moose and Mitchell: Mitchell’s prosecutor-focused prohibition does not control defense efforts; Moose continues to prevent compelling self-incriminating testimony but does not foreclose calling the witness for a Fifth invocation.

Strategic implications for practitioners:

• Defense counsel:
  • Make a robust Hawkins proffer early, detailing evidence connecting the alternative perpetrator to the crime and explaining how a Fifth invocation would aid the defense narrative.
  • Anticipate and address Rule 403 concerns: explain why the invocation adds non-cumulative value beyond photos, records, or third-party testimony; propose limiting instructions; streamline the scope of questioning to avoid theatrics or undue delay.
  • Preserve nontestimonial-appearance requests. If identity or physical gait could matter, ensure the court rules and renew the request if the State opens the door.
• Prosecutors:
  • Resist overbroad readings of Mitchell and Moose. Focus on Rule 403: argue cumulativeness, confusion, or unfair prejudice; articulate less prejudicial alternatives (e.g., stipulations, photographs).
  • Consider immunity strategically. If a defense-called witness invokes the Fifth and the testimony is important to prevent unfair inferences, evaluate seeking use immunity under Minn. Stat. § 609.09 to compel testimony.
• Trial judges:
  • Require a concrete Hawkins showing and a clear proffer of what the defendant seeks to accomplish by calling the witness.
  • Conduct a Rule 402/403 balancing tailored to the record: assess the incremental probative value of the invocation in light of other evidence, whether identity is disputed, and whether a limiting instruction can mitigate risks.
  • Craft and deliver careful limiting instructions regarding Fifth Amendment invocations, minimizing improper inferences while honoring the defendant’s right to present a defense.

Likely litigation patterns: Expect more in limine motions and structured offers of proof in alternative-perpetrator cases; appellate review will center on Rule 403 balancing, not bright-line admissibility rules. The opinion may be persuasive in other jurisdictions grappling with similar issues.

Complex Concepts Simplified

• Alternative perpetrator defense: A defense theory that someone else committed the crime. Under Hawkins, the defendant must first present evidence that inherently tends to connect that other person to the offense, and then the evidence must satisfy the usual admissibility rules.
• Right to present a complete defense: A due process right allowing a defendant to present evidence and call witnesses to tell their side, subject to generally applicable evidentiary rules designed to ensure fairness and reliability.
• Compulsory process: The Sixth Amendment right to use subpoenas to secure witnesses in one’s favor. It does not override a witness’s own constitutional rights, such as the Fifth Amendment privilege.
• Right against compelled self-incrimination: The Fifth Amendment protects a person from being compelled to give testimonial, incriminating evidence. It does not protect against being compelled to appear or display physical characteristics (non-testimonial evidence) and does not apply to voluntary statements absent compulsion.
• Testimonial vs. non-testimonial: Testimonial acts communicate facts or beliefs; non-testimonial acts involve physical evidence like appearance, height, voice, or gait. Only testimonial compulsion triggers the Fifth Amendment.
• Probative value and Rule 403: Evidence is probative if it tends to make a consequential fact more or less likely. Even relevant evidence may be excluded if its probative value is substantially outweighed by risks like unfair prejudice, confusion, or needless cumulation.
• Cumulative evidence: Evidence repeating points already established. Courts may exclude cumulative proof to avoid wasting time or overemphasizing a point.
• Use immunity (Minn. Stat. § 609.09): If the State compels testimony over a Fifth Amendment claim, the testimony cannot be used against the witness in a later prosecution (except for perjury), thereby neutralizing the self-incrimination risk.

Notable Aspects of the Concurrence

Justice Gaïtas agreed with the new discretion-based rule and the forfeiture ruling but criticized the majority’s reliance on an alternative Rule 403 ground not briefed by the State, invoking the party-presentation principle. The concurrence would affirm on harmless-error review, concluding that even if excluding R.J. was error, it was harmless beyond a reasonable doubt given the strong inculpatory evidence against Foster and the marginal additional value of having R.J. take the stand only to invoke the Fifth. This exchange flags a procedural caution: appellate courts should prefer to decide cases based on issues framed and developed by the parties unless justice demands otherwise.

Key Takeaways

• Once a defendant meets Hawkins, Minnesota trial courts may, in their discretion, permit the defendant to call an alternative perpetrator to the stand even if the witness will invoke the Fifth before the jury.
• There is no categorical bar to such testimony; invocations can carry probative value, particularly when integrated with other alternative-perpetrator evidence.
• District courts must apply the ordinary rules of evidence—especially Rules 402 and 403—and can exclude the evidence for reasons such as cumulativeness, confusion, or unfair prejudice.
• Moose and Mitchell remain good law for their limited propositions: a defendant cannot compel self-incriminating testimony, and prosecutors cannot manufacture prejudice by parading Fifth-invoking witnesses.
• Preservation matters: requests for non-testimonial appearances must be pursued to ruling and renewed as trial developments warrant.

Conclusion

State v. Foster meaningfully refines Minnesota law at a sensitive constitutional junction: the defendant’s right to present a complete defense versus a witness’s right against compelled self-incrimination. By rejecting a categorical prohibition and anchoring the analysis in Hawkins and Rules 402/403, the Court empowers trial judges to tailor rulings to the facts, preserving fundamental fairness without sacrificing evidentiary discipline. Although Foster’s conviction stands—because the district court’s alternative Rule 403 ruling was within its discretion—the decision sets a new, practical framework for future alternative-perpetrator trials. Defendants can now, in appropriate cases, seek to put the alternative suspect before the jury even if only to invoke the Fifth, provided they carry their Hawkins burden and the trial court finds the evidence’s probative contribution outweighs its risks. The concurring opinion’s reminder about party presentation and harmless error offers an additional procedural guidepost for future appeals.