EXPLAINER: What is 'spark-of-life' testimony in trials?

Prosecutors trying a white former Minneapolis police officer in George Floyd s death plan to use a legal doctrine called “spark of life” to humanize Floyd in front of jurors.

It’s a doctrine with roots in a 1985 state Supreme Court case, and one that several legal experts said makes Minnesota a rarity in explicitly permitting such testimony ahead of a verdict.

Assistant Attorney General Matthew Frank told Hennepin County Judge Peter Cahill on Wednesday that he plans to invoke the doctrine during Derek Chauvin s trial. It allows prosecutors to call witnesses to testify about crime victims' lives, ostensibly to portray them as more than a statistic. Defense attorneys complain the doctrine allows prosecutors to play on jurors' emotions and has nothing to do with evidence. If Cahill allows prosecutors to go too far, he could hand Chauvin grounds for an appeal.

Here's a look at the doctrine and the potential ramifications of it coming into play during Chauvin's trial.

WHAT IS THE “SPARK OF LIFE” DOCTRINE?

The doctrine emerged in 1985 when a defendant accused of killing a police officer argued to the Minnesota Supreme Court that the prosecutor prejudiced the jury with a speech about the officer's childhood, his parents and his marriage. The prosecutor became so emotional the trial court had to take a recess.

The Supreme Court ruled that prosecutors could present evidence that a murder victim was “not just bones and sinews covered with flesh, but was imbued with the spark of life. The prosecution has some leeway to show that spark and present the victim as a human being as long as it is not an "attempt to invoke any undue sympathy or inflame the jury’s passions.”

HOW IS SPARK-OF-LIFE TESTIMONY RELEVANT?

Victim statements about the impact a crime has had on their lives are common during the sentencing portion of trials across the country. But allowing the introduction of deep biographical information about a victim ahead of a verdict appears to be unique to Minnesota.

The idea is to use witnesses to present a victim as a human being, essentially allowing the victim to speak from beyond the grave, legal observers say.

“This puts some personal nature back into the case for somebody who's treated so impersonally in an unfortunately biased system,” Frank told Cahill.

Defense attorneys counter that the doctrine allows prosecutors to play on jurors' emotions and contributes nothing to jurors' understanding of the crime.

“I've never encountered this before,” said John Gross, an associate law professor at the University of Wisconsin-Madison who has worked as a public defender in New York City and taught criminal defense strategies at Syracuse University and the University of Alabama. “It's pretty obvious how much potential prejudice that could have on the jury. It's a little surprising to me this is potentially fair game in Minnesota. If it isn't evidence of guilt, why is it there?”

HOW FAR CAN THE PROSECUTOR GO?

The doctrine gives judges tremendous discretion on what to allow during spark-of-life testimony.

Frank told Cahill he plans to bring in photographs of Floyd at various stages of his life and present at least two witnesses. He described one as a family member who will speak about Floyd's family, his childhood, how Floyd's mother was important to him and how Floyd was “a brother to this witness," Frank said.

The other witness will testify about Floyd's life since he moved to Minnesota from Houston in 2014, Frank said, as well as his drug use in an attempt to head off Chauvin's attorneys. They're expected to argue that Floyd's drug use killed him, not Chauvin's decision to press his knee into Floyd's neck for nearly nine minutes.

Chauvin attorney Eric Nelson noted such testimony should be limited and they will face cross-examination if the testimony becomes too fawning. Cahill said he won't allow cross-examination about Floyd's drug use but testimony about whether Floyd was a peaceful person or prone to violence could open the door to the defense introducing evidence of his criminal record.

“It can't go on for too long because it distracts from the merits,” the judge said.

COULD THE STRATEGY BACKFIRE ON PROSECUTORS?

Yes. If defense attorneys are allowed on cross-examination to introduce Floyd's criminal record and drug problems they could raise doubts about what killed him in jurors' minds. If the state's witnesses offer too much information Chauvin could argue on appeal that Cahill let too much spark-of-life testimony in.

“It puts a judge in a precarious position,” said David Schultz, a law professor at the University of Minnesota. "If too much is brought in, does it set up the possibility of an appeal, that the judge erred and allowed too much emotion? The smart defense attorneys will figure out how to use this.”

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