Background
Steven Douglas Nelson was tried twice for the November 2020 assault of T.T. on a remote Isanti County dirt road. According to testimony, Nelson drove T.T. and a third man, D.A., to a minimum-maintenance road in the early morning hours, where T.T. was struck repeatedly in the face and head with a metal object and left bleeding. T.T. survived but required 16 staples and 32 stitches. Nelson’s first trial ended in a mistrial after the jury deadlocked. At the second trial, the State charged Nelson with attempted second-degree murder, first-degree assault, and second-degree assault with a dangerous weapon.
At the second trial, the State was unable to produce D.A. for live testimony. Rather than establish D.A.’s unavailability through formal process, the State proposed reading the transcript of D.A.’s sworn testimony from the first trial—including his prior cross-examination by defense counsel—directly to the jury. Defense counsel agreed without objection. Notably, while the district court conducted a personal colloquy with Nelson before admitting stipulated medical records (waiving the right to live testimony from the treating physician), it did not similarly address Nelson personally before admitting D.A.’s prior testimony. The jury convicted Nelson on all counts and he was sentenced to 240 months in prison.
Nelson appealed, arguing the district court violated his Sixth Amendment Confrontation Clause rights by admitting D.A.’s prior testimony without obtaining a personal waiver from Nelson himself. Because no objection was raised at trial, the Minnesota Court of Appeals reviewed only for plain error and affirmed, finding no binding authority clearly required a defendant’s personal waiver of confrontation rights. Nelson petitioned the Minnesota Supreme Court, which granted review.
The Court’s Holding
The Minnesota Supreme Court affirmed, holding that the district court did not commit plain error by admitting D.A.’s prior testimony based solely on defense counsel’s agreement, without a personal on-the-record waiver from Nelson. Writing for the court, Justice Hennesy applied the three-prong plain-error standard—requiring error that is plain and affects substantial rights—and concluded that even assuming error occurred, it was not “plain” because no binding authority clearly or obviously required the district court to obtain a personal waiver from Nelson under these circumstances.
The court undertook a thorough survey of Sixth Amendment jurisprudence and found the law unsettled on whether the confrontation right is among those “fundamental” rights—such as the rights to plead guilty, to a jury trial, to counsel, and to testify—that the Supreme Court has held require the defendant’s personal waiver rather than counsel’s. The Supreme Court has consistently omitted the confrontation right when enumerating which fundamental decisions belong exclusively to the defendant. The Minnesota Supreme Court likewise noted its own prior statement in State v. Caulfield that confrontation rights are specifically “not among those” requiring affirmative written or on-the-record waiver, further undercutting any claim of plain error.
The court expressly declined to resolve whether a personal waiver is constitutionally required as a matter of first impression—only that the law was not clear enough at the time of trial to render any district court error “plain.” Accordingly, Nelson failed to satisfy the plain-error standard and his convictions were affirmed.
Key Takeaways
- Under Minnesota’s plain-error doctrine, a defendant who fails to object at trial bears the burden of showing the alleged error was clear or obvious under existing law; the absence of binding authority mandating a personal waiver of confrontation rights defeated Nelson’s claim.
- Neither the U.S. Supreme Court nor the Minnesota Supreme Court has definitively held that a criminal defendant must personally waive the Sixth Amendment right to confront adverse witnesses—as opposed to waiver by defense counsel—leaving the question expressly open.
- The court signaled tension between Nelson’s position and its own prior precedent: Caulfield distinguished confrontation rights from jury-trial and counsel rights as not requiring affirmative on-the-record waiver, and Trifiletti recognized that confrontation rights can be waived by failure to object.
- The State’s failure to formally establish D.A.’s unavailability was noted but did not change the outcome, as the plain-error analysis focused solely on whether the personal-waiver requirement was clearly established law.
Why It Matters
This decision highlights a significant unresolved question in Confrontation Clause law: whether defendants must personally consent before their attorneys can waive the right to face-to-face confrontation of adverse witnesses. The Supreme Court has identified a narrow set of decisions—guilty pleas, jury waivers, the choice to testify—that belong exclusively to defendants, but has never expressly included or excluded the confrontation right from that list. By affirming on plain-error grounds without resolving the underlying constitutional question, the Minnesota Supreme Court leaves practitioners and trial courts without clear guidance on whether an on-the-record personal colloquy is required before admitting prior testimony of an absent witness.
For criminal defense attorneys, the case is a cautionary reminder that failing to object at trial—even to potentially constitutional violations—raises the bar for appellate relief to the demanding plain-error standard. It also illustrates the importance of ensuring that waivers of significant trial rights are obtained from defendants directly and on the record, as the district court did for the medical records stipulation but not for D.A.’s prior testimony.