author: BLATZ, Chief Justice. ANDERSON, PAUL H., Justice STRINGER, Justice

text:
    STATE of Minnesota, Respondent, v. Gerard J. COSTELLO, Petitioner, Appellant.
    No. C7-00-436.
    Supreme Court of Minnesota.
    June 13, 2002.
    Theodora Gaitas (#271810), Assistant State Public Defender, Minneapolis, MN, for Appellant.
    Michael A. Hatch, Minnesota Attorney General, Eileen Wells, Mankato City Attorney, Christopher Cain (#223797), Assistant Mankato City Attorney, Mankato, MN, for Respondent.
   OPINION

BLATZ, Chief Justice.

This appeal arises from the conviction of appellant Gerard J. Costello for aggravated driving under, the influence of alcohol, driving under the influence of alcohol, driving after cancellation, and giving a false name to a peace officer. We granted review to decide whether the district court erred by allowing jurors to question witnesses during Costello’s trial. The court of appeals held that the practice of questioning by jurors is allowed under the district court’s inherent trial-management power and affirmed the convictions. We reverse and remand to the district court for a new trial.

On September 28, 1999, two Mankato police officers responded to reports of a disturbance in a boarding house. One of the officers, Officer Daniel Padilla, went to the back of the house to ensure that no one exited the house through the back door. As he came around the house, Officer Padilla observed appellant Costello backing a truck out of a parking space. He signaled for Costello to stop, and approached the vehicle to investigate. As he spoke with Costello, Officer Padilla noted an open, partially filled can of beer on the floor of the cab, and observed that CosteUo smehed of alcohol, his speech was slurred, and his eyes were bloodshot. When Officer PadUla asked for identification, Costello initiahy gave a false name and date of birth. After he was told that he would be charged for giving a false name to a peace officer, Costello gave his actual name and date of birth.

Officer PadUla ran the correct identification through dispatch and discovered that Costello’s Ucense had been cancelled as inimical to public safety. CosteUo was then arrested and ultimately charged with aggravated driving under the influence of alcohol, driving under the influence of alcohol, driving after cancellation, and giving a false name to a peace officer. At trial, Costello asserted the defense of necessity, arguing that he was driving only because he was afraid of some other tenants in the boarding house who had threatened to assault him.

Before trial began, the district court informed the parties of its intention to aUow jurors to question witnesses during the trial. Costello lodged a blanket objection to the practice, and the state said that it had “[n]o objection to [Costello’s] request.” When the court noted, “In other words, you join in [CosteUo’s] request,” the prosecutor merely responded, ‘WeU, I don’t want to be too cooperative * * The record reflects that the court noted the objection, but did not engage in any further discussion of the matter.

In 'its preliminary instructions to the jury at CosteUo’s trial, the court gave the following instruction:

Questions by jurors. In this trial you Will be allowed to submit questions for the witnesses. This is a procedure that I’m applying on a case by case basis, so if you’re in another trial, you may not be provided this opportunity. If you have a question for a particular witness, you must write it down. Unless your handwriting is very legible, please print. Don’t sign the question. Signal the bailiff, who will bring your question to me. Now, keep in mind that your question must be submitted before the particular witness leaves the witness stand. In order to be sure that I’ll not miss a question, before I excuse a witness I’ll try to remember to make a general inquiry of you as to whether you have any questions. Sometimes I forget, so the final burden is on you if you have a question, to make sure that I see your hand. But I also want to stress that it’s not necessary for you to ask any questions, and I’ve had more than one trial where not one question was asked by a juror. All right? So, just an opportunity, that’s all it is. I’ll apply the same rules of evidence to any of your questions that I apply to those asked by the attorneys. If I decide that a particular question cannot be asked, I’ll tell you. You shouldn’t speculate as to why your question was not asked. And if I decide not to ask a particular question, I hope you won’t interpret it as some sort of an adverse reflection upon you or the person asking it. Like I say, it’s an opportunity. You may avail yourself of it; a lot of folks don’t. And if you do, then the same rules apply and I’ll let you know.

During the course of the trial, jurors submitted at least five questions to the court. One question was redundant and one question was disallowed because of an objection by the state. Ultimately, the court posed three questions: one to Officer Padilla, one to Costello’s girlfriend, and one to Costello himself.

The first question was posed to Officer Padilla after re-cross examination by the defense. Jurors had submitted two questions during his testimony: “When you first saw the pickup — did it appear to be moving with any urgency, as if to get away in a hurry?” and “Did [Costello] appear eager [to] get out of there (the parking lot, etc.)?” The court asked the first question:

Q: Officer, when you first saw the pickup, did it appear to be moving with any urgency as if to get away in a hurry?
A: No, it just appeared to be — it just had completed, it looked like, back— when I came around the corner of the house, the stalls are right in the back of the house. There’s like three stalls, apparently, for parking at that house, and I just saw it backing, and then it stopped, and it was just going into gear to go forward, and I put my hand up. And no, it didn’t seem to be moving in any urgency.

Costello was allowed to ask follow-up questions about whether the truck appeared to be in gear; the prosecutor declined to ask any follow-up questions.

The second question was posed to Costello’s girlfriend after cross examination by the state. Jurors had submitted two written questions during her testimony: “Had either of the [other tenants] ever made any threats to you or [Costello] on any previous occasions?” and “Did you in any way inform [Costello] of [the other tenant’s] threat to you and to him?” The prosecutor objected to the question about previous threats, and the court sustained the objection, stating that the question “gets a little too far afield on the issue at hand.” The court did, however, ask the other question:

Q: I think you answered this question, but did you ever talk to Gerard Costello or warn him in regard to this threat from [other tenants]?
A: I warned him, yes.

Sua sponte, the court followed the juror’s question with another question:

Q: How did you do that?
A: Through his boss ⅜ * *.
Q: Oh, you talked to [his boss]?
A: Yeah.

Again, Costello asked a follow-up question; the state declined to ask further questions.

The third written juror question was posed to Costello after redirect examination by defense counsel: “Mr. Costello, what was your intended destination when you attempted to leave the parking lot?” The court asked:

Q: What was your intended destination when you were attempting to leave the parking lot before Officer Padilla stopped you?
A: I had told Padilla that I was only going to go down about a half a block and park the truck and walk from there.

Neither party asked any follow-up questions to the third juror question.

Costello was convicted of aggravated driving under the influence of alcohol, driving under the influence of alcohol, driving after cancellation, and giving a false name to a peace officer. On appeal, the court of appeals affirmed the convictions, concluding that the practice of allowing juror questioning was within the district court’s trial-management authority and would be reviewed on a case-by-case basis. State v. Costello, 620 N.W.2d 924, 927-28 (Minn.App.2001). Costello appealed to this court, arguing that juror questioning violated his right to a fair trial by an impartial jury under both the state and federal constitutions, and therefore resulted in reversible error.

’ Costello’s appeal turns on a legal question, which we review de novo. State v. Cheng, 623 N.W.2d 252, 257 (Minn.2001). While the issue of whether a district court can permit jurors to question witnesses during criminal trials is one of first impression, in State v. Crawford, 96 Minn. 95, 104 N.W. 822 (1905), this court analyzed the effect of a spontaneous juror question on “the substantial rights of the defendant.” Id. at 99, 104 N.W. at 823. While the conviction was upheld despite a question asked by a juror during trial, the facts in Crawford are distinguishable from the facts in this case both because the questioning in Crawford was not solicited by the court and the defendant in that case did not raise an objection. Id. at 100, 104 N.W. at 824. Moreover, the policies underlying the court’s reasoning in Crawford — suspicion that reversal based on technical court rules could cause “peaceful and law-abiding citizens to become lawless, and to join in the barbarous method of punishing crime by a resort to the court of Judge Lynch” — are, thankfully, less apposite today. Id. at 102, 104 N.W. at 825. Therefore, the issues we must address are, first, whether. the district court’s juror-questioning policy lay within its inherent trial-management authority; second, whether such a policy can be applied without upsetting the balance between the state and defendants that is guaranteed by an adversarial system; and, third, the effect of juror questioning on this particular defendant’s case.

A district court clearly has the inherent power to “govern[ ] that which is essential to [its] existence, dignity, and function,” but that discretion is only properly exercised when it is a means to “the disposition of individual cases * * * ‘conformable to the laws.’ ” In re Clerk of Lyon County Courts’ Compensation, 308 Minn. 172, 176-77, 241 N.W.2d 781, 784 (1976) (quoting Minn. Const, art. 1, § 8). This court has not yet decided, however, whether allowing juror questioning is “conformable to the laws.”

We turn then to the question of whether juror questioning undermines the adversarial system. The question is best analyzed against the historical background that gives us an appreciation of our current system of criminal justice. The process by which criminal matters have been handled has evolved from an inquisitorial system to an adversarial system. According to Blackstone, defendants charged at common law with capital crimes were not afforded counsel “unless some point of law shall arise proper to be debated.” 4 William Blackstone, Commentaries *356. Both the magistrate and the jurors were authorized to question witnesses, and very few rules governed the introduction of evidence. Stephen Landsman, The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth Century England, 75 Cornell L.Rev. 497, 506 (1990). While most defendants could not retain counsel, challenge evidence, or even call witnesses who would be permitted to testify under oath, the common-law criminal judicial system emphasized law and order in a society that predated the evolution of the defense bar. Id. at 506-09.

Over time, British courts evolved toward a model characterized by greater respect for defendants’ rights to fair procedure, more restrictive standards of evidence, and greater independence of the litigants. Although defense counsel were not allowed to take charge of felony defenses until 1696, they increasingly shaped the role of litigation and advocated changes that would benefit their clients. Id. at 508, 520-24. And while Blackstone describes a system characterized by questions from every participant in the action, these questions were asked increasingly by lawyers. Id. at 536-37. While defendants retained the power to question witnesses, they increasingly deferred to professional counsel. Id. at 557-64. Accordingly, the very manner in which evidence was proffered and accepted became shaped by defense counsel through the art of cross-examination and increasing emphasis on the quality of evidence, such as the creation of the hearsay rule. Id. at 539-42, 564-72. Thus, the American system developed from a model that was itself in the process of adopting the adversarial system we know today.

In America, the spirit of the adversarial system became firmly rooted and constitutionally protected by the Sixth Amendment to the United States Constitution, which guarantees the right to counsel. Today, the modern adversarial system retains questioning by parties, but the role of jurors has evolved from active investigators to passive, neutral observers of the testimony elicited by the advocates for the state and the defendant. See Jeffrey S. Berkowitz, Breaking the Silence: Should Jurors be Allowed to Question Witnesses During Trial?, 44 Vand. L.Rev. 117, 124 (1991).

In the late 1980s, however, some academics began proposing a return to the practice of juror questioning and the practice found its way into the courts. Supporters of such questioning tout its perceived advantages, including: (1) trials are a search for truth and juror questions facilitate that search; (2) jurors may need clarification in complex cases to understand the facts; (3) the jury is the finder of fact and these questions help the jury perform that function; (4) increased juror attentiveness; and (5) increased juror satisfaction. See, e.g., State v. Hays, 256 Kan. 48, 883 P.2d 1093, 1102 (1994); Berkowitz, 44 Vand. L.Rev. at 120-22; Steven D. Penrod & Larry Heuer, Tweaking Commonsense: Assessing Aids to Jury Decision Making, 3 Psychol. Pub. Pol’y & L. 259, 274-76 (1997).

While the practice of juror questioning has not been without controversy, courts on the whole have not rejected it. Juror questioning is now supported by the American Bar Association and is allowed, in some form or another, in federal courts and in the majority of states. See generally Civil Trial Practice Standards 4, at 6 (1998); Kara Lundy, Note, Juror Questioning of Witnesses, 85 Minn. L.Rev.2007, 2021-22 n. 105 & 106 (2001).

The apparent prevalence of juror questioning is misleading, however, because even when allowed, the practice is rarely encouraged. See, e.g., United States v. Thompson, 76 F.3d 442, 448 (2d Cir.1996) (stating “we have strongly discouraged the practice except in extraordinary or compelling circumstances, because such questioning tends to impair juror neutrality during the trial and to encourage premature deliberations”). Further, in addition to tepid support for juror questioning, many states place significant procedural limitations on juror questioning. See, e.g., Hays, 883 P.2d at 1102 (enumerating commonly recommended procedures). Therefore, it should be recognized that even though the practice is allowed in the majority of jurisdictions, most courts have been reluctant to unreservedly encourage it.

Nonetheless, although support for juror questioning has been less than ardent, only four states have prohibited the practice completely in criminal trials. See Johnson v. State, 270 Ga. 234, 507 S.E.2d 737, 742 (1998) (“Clearly, a juror is not permitted to question a witness.”); Wharton v. State, 734 So.2d 985, 990 (Miss.1998) (holding that “juror interrogation is no longer to be left to the discretion of the trial court, but rather is a practice that is condemned and outright forbidden by this Court”); State v. Zima, 237 Neb. 952, 468 N.W.2d 377, 380 (1991) (noting “[a] change in this sys-tern whereby jurors become advocates and possible antagonists of the witnesses does not on its face suggest a fairer or more reliable truth-seeking procedure;” and “the judicial process is better served by the time-honored practice of counsel eliciting evidence which is heard, evaluated, and acted upon by jurors who have no investment in obtaining answers to questions they have posed”); Morrison v. State, 845 5.W.2d 882, 888-89 (Tex.Crim.App.1992). Finally, we note that seven states have apparently never addressed this issue. Lundy, 85 Minn. L.Rev. at 2022 n. 109.

Thus, like the jurisdictions that have decided the issue before us, in this appeal we too must decide whether allowing jurors to question witnesses enhances or detracts from the fair administration of justice in Minnesota. We have jealously guarded the role of juries in our criminal justice system, and many cases reflect our concern with maintaining the impartiality and independence of the jury. In State v. Porter, 526 N.W.2d 359 (Minn.1995), we characterized juror independence as the “heart of the jury system,” and reversed a conviction when the prosecutor in closing argument attempted to impinge on juror independence by playing to jurors’ emotions and fears. Id. at 364, 366. Similarly, we have stated that arguments that ask jurors to put themselves in the shoes of the victim are generally improper, State v. Johnson, 324 N.W.2d 199, 202 (Minn.1982), and we have condemned arguments that invite the jury to speculate about the facts, State v. Thompson, 578 N.W.2d 734, 742 (Minn.1998). Prosecutors also may not distort the burden of proof to the jury. State v. Thaggard, 527 N.W.2d 804, 812 (Minn.1995). Indeed, we have condemned a prosecutor’s suggestion to the jury that its role was to determine if the evidence was sufficient to convict rather than whether the state had proved its case beyond a reasonable doubt — -a distinction that laypeople may find subtle. Id. Each of these cases reflects a deep concern that jurors maintain independence from those involved in the case, objectivity with respect to the evidence, and a clear understanding of their role as deciding whether the state has met its burden of proof. Juror questioning must be evaluated in light of its effect on these principles.

To maintain independence and objectivity, it is a tenet of our criminal justice system that adjudicators should “postpone or suspend the final formation of * * * opinion until the parties have ‘had their day in court’ and have presented all the information that they consider relevant in the context of adjudication.” Bóstjan M. Zupancic, Truth and Impartiality in Criminal Process, 7 J. Contemp. L. 39, 70 (1982). This principle is particularly important in criminal trials, in which the state presents all of its evidence first, and it is sometimes only after several days of listening to mounting evidence against a defendant that the jury may hear any exculpatory evidence. Thus, in Minnesota, jurors are instructed: “You should keep an open mind about all the evidence until the end of the trial, until you have heard the final arguments of the attorneys, and until I have instructed you in the law.” 10 Minn. Dist. Judges Ass’n, Minnesota Practice — Jury Instruction Guides, Criminal, CRIMJIG 1.02 (4th ed.1999). But in order to ask a question, a juror must first develop a hypothesis or, at the very least, respond to a perceived flaw in a party’s presentation of the case before the time to deliberate has arrived.

To the degree jurors are encouraged to ask questions about facts and legal issues, they are encouraged to form “at least a prior tentative opinion because one cannot investigate unless one has a hypothesis about what happened in the particular criminal case.” Zupancic, 7 J. Contemp. L. at 70. Therefore, with such encouragement, there is an increased risk that jurors will “inevitably * * * draw conclusions or settle on a given legal theory before the parties have completed their presentations, and before the court has instructed the jury on the law of the case.” Morrison, 845 S.W.2d at 887. While the state argues that it is “human nature to test one’s hypothesis,” the traditional system’s procedures and instructions have been crafted to limit such activities until both sides have presented their arguments and the jury has been instructed on the relevant law. As the Texas Court of Criminal Appeals noted in Morrison, “Although it is impossible to guarantee that jurors will remain open-minded until the presentation of all of the evidence and instructions, passive detachment increases that probability.” 845 S.W.2d at 886 (citing United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989) (Lay, J., concurring)).

In addition to our concern about the impact that juror questioning will have on juror impartiality, we also are concerned that the practice may affect the burden of proof and production. Due process requires that the state prove beyond a reasonable doubt the existence of every element of the crime charged. In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); State v. Clausen, 493 N.W.2d 113, 116 (Minn.1992). A defendant’s due process rights are violated if the burden to disprove the existence of any element of the crime charged is shifted to the defendant. Mullaney v. Wilbur, 421 U.S. 684, 701-02, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); State v. Auchampach, 540 N.W.2d 808, 816 (Minn.1995); see also Williams v. Florida, 399 U.S. 78, 112, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970) (Black, J., concurring in part and dissenting in part) (stating a defendant “has an absolute, unqualified right to compel the State to investigate its own case, find its own witnesses, prove its own facts, and convince the jury through its own resources”). Allowing jurors to pose questions could, in some cases, elicit testimony from a witness that sufficiently proves an element of a crime, therefore relieving the state of its burden.

The assistance provided to the state by juror questioning may be direct or indirect. Juror questioning can directly assist the prosecution when — as the state approvingly exclaimed in its brief — “evidence could be revealed by a juror question!” Juror questioning can indirectly assist the prosecution when it simply illuminates a facet of the case that interests the jurors. While surveys have indicated that assistance to the prosecution is not a common occurrence, Penrod & Heuer, 3 Psychol. Pub. Pol’y & L. at 278-79, that is, in fact, what occurred here. At oral argument, counsel for the state — the prosecutor in Costello’s trial — described his experience with juror questions:

Counsel: I was ambivalent one way or the other. I said, “This is a slam-dunk case. We’re not going to have anything to worry about.” And then when I saw the very first question, which was “Was the Defendant attempting to leave or showing — indicating that he was leaving with some form of urgency,” right away, I thought, ‘They’re taking his affirmative defense — uh, defense, very seriously, and now I have to respond to it.’ So, from my standpoint it helped me and I think it helped the defense attorney because now he knows exactly that they’re seriously considering this even despite the fact that he deliberately lied about his identity, now they’re thinking—
Court: Counsel, isn’t that a problem? ⅜ * * You recognize that the jury was taking something either seriously or not seriously, and you respond to it as an advocate, it seems to me that that’s changed the dynamic of the trial right there.
Counsel: Oh, it has, it has. The State’s position on this, your Honor, is that— ⅝ * ⅜ *
Court: Maybe the prosecutor was asleep at the switch and was going to leave some essential element out. All of a sudden, you have the jury participating * * * or helping the state more than the defendant * * * [or] in this context, [help] the state meet its burden.
Counsel: You could look it that way. It’s the state’s position that fifty percent of the time it’s going to assist the defense though, as well. It does change the dynamics.

The state’s candid admission that the jurors’ questions convinced him to respond to the defendant’s affirmative defense highlights how the practice of juror questioning can affect the parties’ meeting the burden of proof and forces us to acknowledge that by allowing questioning, the role of the jury is changed. Whether one side is benefited more than the other is of secondary concern. Our concern is not in equalizing the number of notches in the belts of advocates but, rather, whether the jury is being lured into a role that is inconsistent with its responsibility to be an impartial arbiter of justice. As we have previously said:

[T]he jury’s role is not to enforce the law or teach defendants lessons or make statements to the public or to “let the word go forth”; its role is limited to deciding dispassionately whether the state has met its burden in the case at hand of proving the defendant guilty beyond a reasonable doubt.

Salitros, 499 N.W.2d at 819. Because the practice of juror questioning can actively assist the state in meeting its burden, the jurors’ role may be compromised.

In sum, our concern about allowing jurors to question witnesses is two-fold. First, the opportunity to pose questions may prevent jurors from keeping an open mind until all the evidence has been presented. Second, the opportunity to pose questions may upset the burden of production and persuasion in a criminal trial. We believe the passive-juror system minimizes these problems because jurors are (1) not enticed to form hypotheses or judgments about missing testimony; and are (2) prevented from affecting the production of evidence.

Nonetheless, we recognize that the primary reason advanced for juror questioning is that the practice enhances the factfinding function. Any process that enhances the factfinding ability of the jury should not be easily dismissed, as factfinding remains a primary function of the criminal justice system. However, the truth-finding goal is balanced against the rights of the accused and concerns about individual freedom. As Justice Black noted, “A criminal trial is in part a search for truth. But it is also a system designed to protect ‘freedom’ by insuring that no one is criminally punished unless the State has first succeeded in the admittedly difficult task of convincing a jury that the defendant is guilty.” Williams, 399 U.S. at 113, 90 S.Ct. 1893 (concurring in part and dissenting in part). Specifically in the context of juror questioning, we agree with the Texas Court of Criminal Appeals, which noted in Morrison, “Due process and those individual rights that are fundamental to our quality of life co-exist with, and at times override, the truth-finding function.” 845 S.W.2d at 884. Therefore, we conclude that maintaining the neutral role of jurors in an adversarial system outweighs whatever enhancement to the truthfinding function that juror questioning allows.

Our grave concerns regarding the effect juror questioning has on the rights of the parties are not abated by research on the effects of juror questioning on the truth-finding mission. Two surveys — one national and one based in Wisconsin— reached the same conclusion: While jurors are quite satisfied with their jury experiences, this assessment “was not influenced by the presence or absence of juror questions.” Penrod & Heuer, 3 Psychol. Pub. Pol’y & L. at 276. Further, survey questions revealed that “jurors’ satisfaction with their verdict and their attitudes toward jury service were unaffected by their opportunity to ask questions.” Id.; see also Larry Heuer & Steven Penrod, Increasing Juror Participation in Trials Through Note Taking and Question Asking, 79 Judicature 260, 256-61 (1996) (discussing the Wisconsin survey).

Finally, it is worth noting that the state advances few compelling arguments in support of taking such a risk with our traditional jury system. The state did not oppose Costello’s objection at trial, and only defended the practice on appeal. In its briefs to this court, the state points to only the possibility that juror questioning “provide[s] information and [insight] to juror concerns.” In this way, the state argues, “[b]oth the prosecution and defense can address a juror’s concerns while the case is evolving” — an argument that underscores the fact that juror questioning can impact, in a very real way, the adversarial nature of our criminal justice system. The less-than — enthusiastic tolerance of juror questioning by many of our sister states, and the limitations created in an attempt to harness the dangers implicit in such questioning, do not erase our doubts about the assertion that juror questioning is simply a matter of trial management. As Judge Lay implied in a concurring opinion, juror questioning goes to the very heart of our adversarial system of justice:

The fundamental problem with juror questions lies in the gross distortion of the adversary system and the misconception of the role of the jury as a neutral factfinder in the adversary process. Those who doubt the value of the adversary system or who question its continuance will not object to distortion of the jury’s role. However, as long as we adhere to an adversary system of justice, the neutrality and objectivity of the juror must be sacrosanct.

Johnson, 892 F.2d at 718 (Lay, J., concurring).

While the debate over juror questioning will undoubtedly continue, we are persuaded that the exact effect of such questioning is not quantifiable, and the inherent risks so significant that the practice must be proscribed. See Morrison, 845 S.W.2d at 886-89; Zima, 468 N.W.2d at 379-80. Therefore, to protect the neutrality and impartiality of jurors — both critical to the fair administration of justice — we exercise our supervisory power and hold that no court shall permit jurors to question witnesses in a criminal trial. See Scales, 518 N.W.2d at 592 (recognizing supervisory power over criminal trials “to insure the fair administration of justice” (citing Borst, 278 Minn. at 397,154 N.W.2d at 894)); see also VanWagner, 504 N.W.2d at 750 (stating that we exercise our super-visory power to protect the “integrity of the factfinding process itself’).

Finally, having determined that the district court erred in allowing juror questioning, the state urges this court to adopt a harmless error standard, arguing that even if the district court erred in allowing questions, neither the procedure nor the particular questions posed in this case affected the verdict, and therefore a new trial is not warranted. See State v. Juarez, 572 N.W.2d 286, 292 (Minn.1997) (“If the verdict rendered is ‘surely unattributable’ to the error, then the error is harmless beyond a reasonable doubt and the conviction stands.”). We disagree. Because a court rule allowing juror questions can affect the outcome of a criminal case in subtle ways that go directly to the neutrality and impartiality of a juror, the error here must be analyzed differently than in cases where jurors spontaneously ask to question witnesses. Cf. Crawford, 96 Minn. at 103, 104 N.W. at 825. In similarly rejecting a harmless error standard of review, the Texas Court of Criminal Appeals noted the difficulty of discerning the effect of jury questioning on a guilty verdict:

Where the role of the jury as a neutral fact-finding body is significantly modified, the underpinnings of our system, designed to ensure trial by a fair and impartial jury are likewise compromised. A determination of harm in this context is virtually impossible. Accordingly, we hold that the practice of permitting jurors to become active participants in the solicitation of evidence by questioning witnesses is not subject to a harm analysis.

Morrison, 845 S.W.2d at 889.

The rationale in Morrison illuminates why harmless error analysis is unsuited to this type of error: because juror questions may imperceptibly affect the production of evidence, the presentation of the state’s case, and the jury’s deliberations, it is impossible for an appellate court to infer from a record that the verdict rendered is “surely unattributable” to the error. See Juarez, 572 N.W.2d at 292. Juror questioning leads to “unfairness of a subtle and psychological nature that is difficult to identify with particularity.” Johnson, 892 F.2d at 711 n. 1 (Lay, J., concurring). Thus, harmless error analysis is inappropriate not because of the magnitude of the error, but because it is impossible to quantify the effects of the error.

Accordingly, as an exercise of our supervisory power, we hold that no court shall permit juror questioning during criminal trials. Further, because the effect of such questioning is not quantifiable and the appellant raised a timely objection to the district court’s practice, thereby preserving the issue for appeal, the defendant must be given a new trial. This holding applies both to the instant case and prospectively to similar cases where the issue has been preserved.

Reversed and remanded to the district court for a new trial.

ANDERSON, PAUL H., Justice

(dissenting).

I respectfully dissent. While I conclude that the practice of juror questioning should be discouraged; I am unable to ascertain a basis for its total prohibition under our supervisory powers or under the federal or state' constitutions. At first blush, the majority appears to have provided a basis for the total prohibition of juror questioning using our supervisory powers. However, the logical foundation of the opinion rests on the debatable premise that jurors must be passive to be impartial. It also rests on the notion, rejected by the federal system and an overwhelming majority of other states, that safeguards used to insure the integrity of the judicial process from any potential problems of juror questioning are so inadequate that the only solution is the total elimination of the practice. While I understand the concerns, and even the anxiety, that underlie the majority’s holding, the prohibition of juror questioning is an unnecessary solution to the concerns raised, particularly in light of the available safeguards. Therefore, even though I conclude that juror questioning should be the exception, I would hold that, subject to certain safeguards, the practice is permissible.

The majority begins its analysis by explaining that the role of jurors is to be passive, neutral observers. According to the majority, jurors maintain their independence and objectivity by waiting to form an opinion until all the evidence has been received. But the majority then goes on to conclude that asking any question is contrary to the passive, neutral role of jurors because asking a question requires a juror to develop a hypothesis or identify a flaw with one party’s theory.

The majority’s conclusion that a juror who raises a question can no longer be impartial because she has a hypothesis in mind or has identified a flaw in the evidence is based on (1) an article by Bostjan M. Zupancic, a former visiting professor at Pordham University School of Law, and (2) an opinion of the Texas Court of Criminal Appeals. According to the majority, Zupancic argues that jurors who ask questions are encouraged to form a prior tentative opinion because “one cannot investigate unless one has a hypothesis about what happened in the particular criminal case.” Bostjan M. Zupancic, Truth and Impartiality in Criminal Process, 7 J. Contemp. L. 39, 70 (1982). The majority also bases its conclusion on a statement by the Texas Court of Criminal Appeals. More particularly, that court stated that passive detachment encourages the probability that jurors will remain open-minded until the presentation of all the evidence and that jurors who ask questions draw conclusions or settle on a given legal theory before the parties have completed their case presentations. Morrison v. State, 845 S.W.2d 882, 887 (Tex.Crim.App.1992).

In my view, the majority’s reliance on Professor Zupancic’s article and the opinion of the Texas Court of Criminal Appeals is insufficient to justify the result reached here. The article by Zupancic does not specifically address the issue of questioning by jurors. Rather, it discusses the issue of investigation and impartiality in the abstract sense. The decision of the Texas Court of Criminal Appeals is based on the argument that juror questioning undermines the ability of jurors to be neutral fact-finders. But the authority cited by the Texas court for this proposition are mere assertions by the Fourth and Eighth Circuits that juror questioning undermines juror impartiality. See United States v. Johnson, 892 F.2d 707, 713 (8th Cir.1989) (Lay, J., concurring); DeBenedetto v. Goodyear Tire & Rubber Co., 754 F.2d 512, 516-17 (4th Cir.1985). Notably, all of the federal courts to address the issue of juror questioning, including the Fourth and Eighth Circuits, have permitted it subject to certain safeguards. Johnson, 892 F.2d at 710; United States v. Polowichak, 783 F.2d 410, 413 (4th Cir.1986). None has utilized the assertion that juror questioning undermines juror impartiality to eliminate the practice altogether.

Not only do I find the authority cited by the majority unconvincing, I also find that the majority’s assumption that jurors must be passive to be impartial is at odds with both the adversary system and the process of rational intellectual inquiry used by jurors. Under the adversary system, the parties begin the trial process by making opening statements identifying their respective ease theories and demonstrating how the evidence will support those theories. Throughout the trial, jurors evaluate each piece of evidence to determine the extent to which it supports the alternative case theories. Jurors constantly evaluate the evidence during the trial, but make their ultimate decision after all of the evidence has been received. Part of this evaluation process contemplates that each juror will constantly ask herself questions about the flaws in the evidence and consider which party’s theory the evidence supports.

Thus, contrary to the majority’s argument that jurors are passive recipients of information, jurors continuously evaluate the evidence. When jurors ask themselves questions, it is appropriate for them to have the respective case theories in mind or to be thinking about the flaws in the evidence. Indeed, the'parties themselves have provided the jurors with the theories and hypotheses and likely have identified the flaws in the evidence. Because jurors engage in analytical thinking throughout the trial, thinking of a question does not automatically undermine a juror’s impartiality.

In addition to the majority’s concern about the impact of juror questioning on impartiality, the majority is also concerned that allowing jurors to pose questions could elicit testimony from a witness that might tend to prove an element of a crime, thus relieving the state of its burden. I share this concern. However, the safeguard of the judge reviewing the written question before it is posed to the witness should be adequate to ensure that the sensitive balance in areas of burden of proof will not be upset. Thus, there is no need to totally prohibit the practice, particularly in light of the fact that, as the majority acknowledges, it is not a common occurrence for juror questioning to assist the prosecution in its burden of proof. Indeed, only four states have absolutely prohibited juror questioning in criminal trials while the vast majority of states as well as the federal system have permitted juror questioning subject to certain safeguards. See State v. Hays, 256 Kan. 48, 883 P.2d 1093, 1097-1100 (1994) (reviewing the extent to which juror questioning is permitted in state and federal criminal trials).

A court should not encourage or actively solicit questions. However, if a juror does pose a question, I would impose the following safeguards to insure the integrity of the judicial process. A court should permit questions only for purposes of clarification. Questions should be submitted in writing to the court in a nonintrusive manner. Questions should be raised by the jurors without discussion with the other jurors. The testimony of witnesses should not be interrupted by questions from jurors. The court should determine the propriety of the question. The court should also decide when the question should be asked and the court itself should pose the question. Counsel should be afforded the opportunity to object to the question outside the presence of the jury. When appropriate, the court should instruct the jury not to draw inferences from the fact that a submitted question is not asked. Finally, counsel should be given the opportunity to further examine the witness after the juror’s question is posed. If these safeguards are followed, the majority’s concerns that juror questioning undermines juror impartiality and alters the burden of proof and production should be alleviated.

In the end, I conclude that it is not necessary to totally prohibit juror questioning to maintain the integrity and fairness of the judicial process. Instead, while discouraging its use, we can allow the practice subject to procedural safeguards. Accordingly, I would hold that juror questioning is permissible within the sound discretion of the district court subject to the nonexclusive list of procedural safeguards I have set forth above. I would therefore affirm the court of appeals by holding that the district court did not abuse its discretion when it permitted individual jurors to submit questions for witnesses.

STRINGER, Justice

(dissenting).

I join in the dissent of Justice Paul H. Anderson.

      . The court records contain evidence of an additional two written questions that were submitted by tire jurors but not asked by the court, although the record is not clear whether the questions were objected to by counsel or rejected, sua sponte, by the judge: "Mr. Costello — were you carrying anything from the house to the pick up? (I'm wondering where the opened beer can came from.)” and "Was the Budweiser beer the 'Bush' \sic ] brand of Budweiser?”

      . This is not to suggest that every district court procedure on which this court has not ruled is in question. Many district court procedures are properly left to the discretion of the district court. The particular procedure at issue here has been the subject of debate and courts have reached different conclusions on its permissibility.

      .Blackstone wrote, "[T]he occasional questions of the judge, the jury, and the counsel, propounded to the witnesses on a sudden, will sift out the truth much better than a formal set of interrogatories * * *.” 3 Blackstone, Commentaries *373.

      .The right to assistance of counsel is so fundamental to the American system of justice that the Sixth Amendment has been interpreted to guarantee the right to counsel for indigent defendants who face incarceration. Gideon v. Wainwright, 372 U.S. 335, 344-45, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); see also, e.g., State v. Borst, 278 Minn. 388, 397, 154 N.W.2d 888, 894 (1967) (exercising supervisory power to require the appointment of counsel to represent indigent misdemeanor defendants).

      . To alleviate the serious concern surrounding this issue, many states have adopted procedural safeguards. For example, in a full analysis of the issue, the Kansas Supreme Court noted the following commonly recommended procedures: (1) the court should inform jurors at the beginning of the trial that they will be allowed to question the witnesses; (2) the court should not invite questions until a juror first asks for clarification; (3) questions should be allowed only on important points or for clarification; (4) questions should be submitted in writing; (5) jurors should not question witnesses directly; (6) questions should be submitted by individual jurors without discussion among the other jurors; (7) counsel should be able to make objections outside the presence of jurors; (8) the court should rule on objections and relevance before asking the questions; (9) the court should instruct the jury that no inference should be drawn if a submitted question is not asked; (10) only the court should ask the questions, although counsel may ask the question if there are no objections; and (11) counsel should have the opportunity to ask follow-up questions. Hays, 883 P.2d at 1100.

      . As we recognized in State v. Salitros, 499 N.W.2d 815 (Minn.1993), improper arguments to the jury can and are made by both the state and the defense, and the fact that most of the case law in this area involves misconduct by prosecutors simply reflects that, generally speaking, only the defendant can appeal in a criminal case. Id. at 817.

      .Because the Texas Court of' Criminal Appeals has final appellate jurisdiction over criminal cases in the state of Texas, Tex. Const. Art. 5, § 5(a), its opinion is similarly persuasive as any other state court of final appellate review. See Thompson v. State, 384 N.W.2d 461, 463 (Minn.1986) (citing the Texas Court of Criminal Appeals for one interpretation of a United States Supreme Court case).

      . In this case, the jurors' questions went to Costello’s affirmative defense, but it is not difficult to imagine a scenario where juror questions help prove the state's case.

      . In Morrison, for example, the defendant was accused of murdering the victim in a fight that broke out during a drug transaction. 845 S.W.2d at 883 n. 2. At trial, a detective testified about blood he found in the victim’s house. Id. A juror submitted a question about whether any of the blood belonged to the defendant. Id. Defense counsel objected on hearsay grounds, and the question was never asked; but the court did allow the state to call the witness back to the stand to testify that the defendant did not have any visible wounds, scratches, or injuries. Id.

      . Apparently the dissent is not bothered by the occasional shifting of burdens as long as the judge follows a "safeguards” protocol. This approach is troubling as it elevates form over substance and ignores the substance of the majority’s concern. Protocols, as used in this very case, do not provide sufficient protection against the serious danger of jurors stepping into the important, albeit decidedly different, roles of the parties. Further, the protocols set forth by the dissent provide no guidance as to when questioning should be allowed. Indeed, the dissent would allow juror questioning in every trial if a trial judge would so allow — even though the dissent too believes that such "questioning should be the exception.”

      . Thus, some kinds of "truth” are kept from the factfinder. State v. VanWagner, 504 N.W.2d 746, 750 (Minn.1993) (noting that hearsay and Spreigl evidence are sometimes properly excluded despite impeding truth-finding). We stated in VanWagner that "[t]he prosecutor is bound to seek that truth which is governed, by the rules of evidence." 504 N.W.2d at 750 (emphasis added); see also Minn. R. Evid. 403 (allowing the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, misleading the jury, or considerations of judicial efficiency). Similarly, the privilege against self-incrimination impedes the truth-finding function of criminal courts. See Tehan v. United States ex rel. Shott, 382 U.S. 406, 416, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966). And prophylactic rules to protect defendants' rights may inhibit them from speaking freely and exposing the truth. See State v. Scales, 518 N.W.2d 587, 592 (Minn.1994) (requiring peace officers to record interrogations). Additionally, privileges limit the production of evidence that could be helpful to a jury in determining the "truth.” See, e.g., Kobluk v. Univ. of Minnesota, 574 N.W.2d 436, 440 (Minn.1998) (attorney-client privilege); In re D.M.C., 331 N.W.2d 236, 238 (Minn.1983) (medical privilege); State v. Clark, 296 N.W.2d 372, 376 (Minn.1980) (marital-communications privilege); In re Swenson, 183 Minn. 602, 603, 237 N.W. 589, 590 (1931) (clergy privilege).

      . After Costello stated he did not want the jurors to ask questions and placed a blanket objection on the record, the district court asked the state if it had "[a]ny comments on that issue?” The state replied, "No objection to [Costello’s] request, your Honor.”

      . In large part, the dissent bases its support of allowing juror questioning on the raw numbers — that is, the fact that a majority of appellate courts that have addressed the issue have not barred district courts from allowing juror questioning. This narrow focus ignores the fact that while many appellate courts have begrudgingly allowed questioning in the name of discretion, the vast majority of trial judges do not allow the practice. And for good reason.

      .Because juror questioning of witnesses is proscribed under our supervisory power, we need not reach Costello's constitutional claims.

      . Zupancic is currently an elected judge on the European Human Rights Court.


source: Caselaw Access Project

author: BLATZ, Chief Justice.

license: Public Domain

text:
    Otha E. TOWNSEND, a/k/a Umar M. Abdullah, Petitioner, Appellant, v. STATE of Minnesota, Respondent.
    No. C6-02-61.
    Supreme Court of Minnesota.
    June 27, 2002.
    Rehearing Denied Aug. 12, 2002.

      Otha E. Townsend, a/k/a, Umar M. Ab-dullah, pro se, Bayport, MN, Appellant’s Attorney.
    Michael A. Hatch, Minnesota Attorney General, Susan Gaertner, Ramsey County Attorney, Mark Nathan Lystig, Assistant Ramsey County Attorney, St. Paul, MN, Respondent’s Attorneys.
   OPINION

BLATZ, Chief Justice.

Otha Townsend appeals from the denial of his second petition for postconviction relief. Appellant Townsend was convicted of first-degree murder in 1994, and on direct appeal he raised the admissibility of evidence relating to an attempted murder he later pleaded guilty to, committed on the same night as the murder. We held that certain of the evidence was inadmissible but its admission was harmless beyond a reasonable doubt, applying a standard that the error is harmless if the weight of all the other evidence is such that it “justifies the verdict regardless of the erroneous admission.” State v. Townsend, 546 N.W.2d 292, 297 (Minn.1996) [hereinafter Townsend I ] (citation and quotation omitted). One year later in State v. Juarez, 572 N.W.2d 286, 291 n. 6 (Minn.1997), we acknowledged that we had on occasion previously “misstated the significance of the strength of the evidence of guilt in harmless error analysis,” citing as an example Townsend I. Townsend then filed a petition for a writ of habeas corpus, which the district court treated as a petition for post-conviction relief under Chapter 590, in which Townsend sought application of the correct harmless error standard and a new trial. The postconviction court denied the petition, finding that “[a]ll the ingredients of the proper test and its proper application” were present in the ruling on direct appeal. We affirm on the basis that application of the harmless error standard Townsend seeks results in the conclusion that the admission of the erroneously admitted evidence was harmless.

To address appellant’s claim, we need not restate the facts in detail-they are fully set forth in our decision addressing appellant’s direct appeal, Townsend I, 546 N.W.2d at 294-95. Lisa Johnson was a neighbor and friend of Candis Koch-Wilson. At about 1:30 a.m. on October 31, 1992, Koch-Wilson brought appellant, a long-time Mend, to Johnson’s home for appellant to sample and possibly purchase marijuana from Johnson. They made a deal for a purchase, and appellant left with Koch-Wilson to go to an automatic teller machine.

About ten minutes later, appellant returned to Johnson’s home alone. Johnson got the marijuana and, with appellant following, headed downstairs to her living room to place the marijuana in a bag. Johnson remembers nothing else until she awoke sometime later on her couch bleeding and having difficulty breathing. She had been shot in the mouth and in the back of the head. Unable to see, she felt her way along the walls of her home to a door, and made her way to the home of a neighbor, who then called 911. Johnson later identified appellant as her assailant.

At approximately 4:00 a.m., a newspaper carrier discovered Koch-Wilson’s body on a street not far from an apartment where appellant stayed occasionally. Koch-Wilson had been shot five times in the head. At the nearby apartment police found a duffle bag containing .25 ACP caliber ammunition. Bullets from Koch-Wilson’s body and from Johnson were analyzed and also found to be .25 ACP caliber. There was insufficient evidence to show that the same weapon fired the bullets, however, and a weapon was never recovered.

About a week after the murder, appellant’s car was found on fire in a remote location in Eagan. An accelerant had been used. Although the license plates had been removed and the vehicle identification number (VIN) on the dashboard was not found, police were otherwise able to identify appellant as the owner. Subsequent DNA testing showed that blood found behind the front passenger seat in the car was consistent with Koch-Wilson’s DNA.

Appellant was indicted for first- and second-degree murder for the offense against Koch-Wilson, and two counts of attempted murder for the offense against Johnson. The district court granted the motion to sever the attempted murder from the murder charges, and before trial on the murder charges appellant moved to suppress all evidence of the Johnson attempted murder. The district court denied the motion, but clarified for the jury that such evidence would be admitted only for the purpose of proving identity.

At trial, Johnson testified that after she came to, she could not see, and felt her way through the home, smearing blood on the walls. Johnson also revealed that she was seven months pregnant at the time. Seven witnesses testified to Johnson’s physical state after the assault, as well as the condition of the apartment. Large, full-color photographs of the Johnson home were used to illustrate the attack on Johnson.

The jury found appellant guilty and he was sentenced to life in prison. On direct appeal, he alleged that the admission of evidence of the attempted murder of Johnson was so prejudicial that he was denied a fair trial. We held that the probative value of some of the evidence of the Johnson offense was significantly outweighed by the possibility of unfair prejudice:

If evidence relating to the Johnson attempted murder was relevant to either motive or identity, a description of the crime scene may have been helpful. Several additional descriptions, plus a host of photos, could do nothing but inflame the jury improperly. Similar cumulative evidence of Johnson’s injuries, along with evidence of her pregnancy, also should have been excluded.

Townsend I, 546 N.W.2d at 296.

We then proceeded to apply harmless error analysis, noting that for error to be harmless, we must be able to declare the belief that the error is harmless beyond a reasonable doubt. Id. at 297. We quoted cases stating that:

“Harmless beyond a reasonable doubt” does not mean there must be absolutely no doubt of guilt, rather it means that the weight of all the other evidence is such that it “justifies the verdict regardless of the erroneous admission * * *.” State v. Ford, 539 N.W.2d 214, 227 (Minn.1995), cert. denied, [517] U.S. [1125], 116 S.Ct. 1862, 134 L.Ed.2d 529 (1996).
“[The defendant’s] burden is to demonstrate that, despite viewing the evidence in a light most favorable to the government and drawing all reasonable inferences to support the jury’s verdict, the jury could still have entertained a reasonable doubt as to his guilt.” [United States v. Foote, 920 F.2d 1395, 1401 (8th Cir.1990) ]. “We have a natural hesitation to reverse a conviction on errors * * * in the admission of evidence, where the evidence of guilt is strong * * *, [b]ut to reach the conclusion[ ] that the errors were without prejudice we must hold that the guilt of the defendant was conclusively proven.” State v. Flowers, 262 Minn. 164, 168, 114 N.W.2d 78, 81 (1962) (quoting State v. Hutchison, 121 Minn. 405, 409, 141 N.W. 483, 484 (1913)).

Townsend I, 546 N.W-.2d at 297. We then recounted the strong evidence of appellant’s guilt, including the blood on the floor of appellant’s car matching the blood of the victim, that appellant was the last person to see the victim alive, the ammunition found in appellant’s belongings that matched the bullets in Koch-Wilson and Johnson, and evidence of appellant’s flight. Id.

Appellant filed a petition for postconviction relief, which was denied. Townsend v. State, 582 N.W.2d 225, 288-29 (Minn.1998) (holding ineffective assistance of counsel claim unsupported by record and other claims raised were known at time of direct appeal and thus barred). He then filed a petition for habeas corpus in the district court of Ramsey County, which is not the county where he is incarcerated. See Minn.Stat. § 589.02 (2000) (providing a petition for habeas corpus must be filed in the county where petitioner is incarcerated). For purposes of arguing the petition, appellant was represented by counsel, who stipulated that the matter could be considered as a petition for postconviction relief rather than as for habeas corpus. A petition for postconviction relief is brought in the county where the petitioner was convicted, in this instance Ramsey County.

In his petition, appellant argued that in State v. Juarez, 572 N.W.2d 286 (Minn.1997), this court announced a new standard to be applied for harmless error analysis, specifically identifying as an erroneous application of the standard our decision in Townsend I:

We concede that on occasion we have inadvertently misstated the significance of the strength of the evidence of guilt in harmless error analysis. An example is our decision in Townsend, on which the court of appeals relied. 546 N.W.2d at 292. To the extent that decision, or any other decision of this court or the court of appeals, misstates the significance of the strength of the evidence in harmless error analysis, the decision should not be followed.

Juarez, 572 N.W.2d at 291 n. 6. Appellant alleged in his habeas petition that he is now entitled to have the erroneous admission of the Johnson attempted murder evidence evaluated for harmless error under the correct standard, and that based on that standard he is entitled to a new trial. The postconvietion court denied the petition, interpreting Townsend I to have properly decided that any error in the admission of the Johnson attempted murder evidence was harmless beyond a reasonable doubt.

I.

On review of a postconvietion proceeding, this court’s role is limited to determining whether there is sufficient evidence to sustain the findings of the post-conviction court. State v. Knaffla, 309 Minn. 246, 252, 243 N.W.2d 737, 741 (1976). A postconvietion court’s decision will not be disturbed absent an abuse of discretion. Robinson v. State, 567 N.W.2d 491, 494 (Minn.1997).

Appellant first claims that the post-conviction court erred in construing his petition for a writ of habeas corpus as for postconvietion relief. Both habeas corpus, Minn.Stat. ch. 589 (2000), and the postcon-viction statute, Minn.Stat. ch. 590 (2000), provide a method for challenging a conviction based on claimed constitutional errors, such as the due process error appellant alleges in this case. See State ex rel. Holm v. Tahash, 272 Minn. 466, 469, 139 N.W.2d 161, 163 (1965) (holding habeas available to address claimed constitutional errors); Minn.Stat. § 590.01, subd.l(l) (2000) (providing that person convicted of a crime may petition for postconvietion relief on the basis that “the conviction obtained or the sentence or other disposition made violated the person’s rights under the Constitution”). Perhaps in recognition of the similarity between the two procedures, counsel appearing on behalf of petitioner agreed that the habeas petition could be considered as a petition for post-conviction relief. We have previously recognized that attorneys have the authority to make agreements respecting procedure that do not affect the substantive rights of their clients, even without consultation. Cahaley v. Cahaley, 216 Minn. 175, 180, 12 N.W.2d 182, 185 (1943) (cautioning that attorneys must therefore act with utmost good faith). In this case, appellant fails to explain how construing a petition for habe-as corpus as a petition for postconvietion relief affects his substantive rights. Indeed, had his attorney not agreed to treat the petition as for postconvietion relief, the petition would likely have been dismissed because it was filed in the wrong county. See Minn.Stat. § 589.02 (2000); State ex rel. Flores v. Tahash, 278 Minn. 431, 432, 153 N.W.2d 343, 343 (1967) (providing relator could elect to proceed on petition for habeas corpus in county where detained or dismiss that petition and proceed under postconvietion remedy act in county where convicted). Under these circumstances, we hold that the district court did not err in construing the petition for writ of habe-as corpus as a petition for postconvietion relief.

II.

Appellant seeks application of a different standard for harmless error than that applied in his direct appeal, and claims that under the proper standard he is entitled to a new trial. We acknowledged in Juarez that in appellant’s direct appeal we inadvertently misstated the significance of the strength of the evidence of guilt in harmless error analysis. 572 N.W.2d at 291 n. 6. We therefore proceed to apply the proper standard to the facts of appellant’s case.

Appellant alleges that the proper harmless error standard is set forth in Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) and Sullivan v. Louisiana, 508 U.S. 275, 278-79, 113 S.Ct. 2078, 124 L.Ed.2d 182 (1993). We relied on these decisions in Juarez to clarify that harmless error analysis is more appropriately termed “harmless error impact analysis,” because it is the effect of the error on the verdict that the appellate court considers. 572 N.W.2d at 291. In Sullivan, the United States Supreme Court stated:

[T]he question [Chapman ] instructs the reviewing court to consider is not what effect the constitutional error might generally be expected to have upon a reasonable jury, but rather what effect it had upon the guilty verdict in the case at hand. Harmless-error review looks, we have said, to the basis on which the jury actually rested its verdict. The inquiry, in other words, is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error.

Sullivan, 508 U.S. at 279, 113 S.Ct. 2078 (citations and quotations omitted). Accordingly, when applying the Chapman harmless error test, we “look to the basis on which the jury rested its verdict and determine what effect the error had on the actual verdict.” State v. Jones, 556 N.W.2d 903, 910 (Minn.1996). If the verdict was surely unattributable to the error, the error is harmless beyond a reasonable doubt. Id.; Juarez, 572 N.W.2d at 292.

Therefore, the question in this case is: what effect did the jury’s hearing about and seeing the erroneously admitted evidence of the Johnson attempted murder have on the verdict? In applying this test, we consider the manner in which the evidence was presented, whether it was highly persuasive, whether it was used in closing argument, and whether the defense effectively countered it. State v. Ferguson, 581 N.W.2d 824, 833 (Minn.1998).

In this case our focus is not on all evidence of the Johnson attempted murder, as some evidence of the attempted murder was admissible either as “immediate episode” evidence pursuant to State v. Spreigl, 272 Minn. 488, 497, 139 N.W.2d 167, 173 (1965), or as other crime evidence relevant to the issue of identity or motive, pursuant to Minn. R. Evid. 404(b). Townsend I, 546 N.W.2d at 296. What was problematic was the extensive evidence of the Johnson crime scene including multiple photographs showing bloody walls and furniture, the evidence admitted regarding the nature of Johnson’s injuries, and the fact of Johnson’s pregnancy. Id. at 296-97. It was this evidence that we determined was improperly admitted because its probative value was substantially outweighed by the danger of unfair prejudice. Id.

Applying the “surely unattributable to the error” standard from Juarez to the record below leads to the conclusion that the verdict was surely unattributable to the wrongfully admitted evidence. Specifically, the manner in which the evidence was presented suggests that the jury would not have focused unduly on this evidence. The trial included extensive testimony regarding DNA, ballistics, and an arson investigation. While several witnesses described the bloody scene at Johnson’s home, that evidence was not the focus of any one witness’ testimony. The evidence was not disputed, so the jury’s attention was not directed to it by the parties advocating a particular version of the facts. Johnson’s testimony focused on her contact with Koch-Wilson on October 30-31, and not significantly on her own physical state as a result of the attack.

Moreover, in opening statements counsel did not mention in any detail Johnson’s injuries or the state of her home. In a 36-page closing statement, the prosecutor described but did not dwell on the nature of Johnson’s injuries, and mentioned only briefly the condition of the home. Appellant’s counsel made the only reference in closing argument to Johnson being pregnant. Thus, applying the considerations set forth in Juarez, we hold that the verdict was surely unattributable to the erroneously admitted evidence. See Juarez, 572 N.W.2d at 292.

In addition, although the court cannot focus only on evidence of guilt in the harmless error analysis, “overwhelming evidence of guilt is a factor, often a very important one, in determining whether, beyond a reasonable doubt, the error has no impact on the verdict.” Id. at 291. Therefore, the evidence of guilt that this court focused on in Townsend I remains a relevant consideration in harmless error analysis. That evidence included: 1) blood matching the victim’s DNA found on the floor of the back seat of a car registered to appellant; 2) evidence that appellant was with the victim on the night of her death and was the last person to see her alive; 3) evidence that the ammunition found in appellant’s duffel bag was of the same caliber as that taken from the victim’s body; and 4) evidence of appellant’s flight after the murder. 546 N.W.2d at 297. The strength of this evidence makes it less likely that the erroneously admitted evidence affected the verdict in this case.

Because no witness dwelled significantly on the erroneously admitted evidence; counsel did not address the erroneously admitted evidence to any significant degree in opening or closing statements; and evidence of guilt was strong, we conclude that the verdict was surely unattributable to the erroneously admitted evidence. See Ferguson, 581 N.W.2d at 833; Juarez, 572 N.W.2d at 292. As such, the district court did not abuse its discretion in denying appellant a new trial.

Affirmed.

      . Appellant later pleaded guilty to the attempted murder of Johnson.

      . The prosecutor stated in closing:
      So when Lisa Johnson places the marijuana in the bag, as she is leaned down to put it in, he has taken the gun out, puts it to her face, fires off a round into her jaw. She is reeling from this shot, and he figures, "This isn’t a killing shot.” So he puts one where it's going to work, behind her ear into her skull; fires a second one off.
      This time Lisa is probably dropping. And by the time he fires the third shot off, he essentially misses her skull, didn’t hit her because we know that bullet went through the wall and was found in the utility room.
      The couch blanket containing the blood. The most obvious stain of blood found indicates she most probably laid there and bled for awhile, until she gained enough consciousness to move and to seek help at that point.
      The defendant takes the marijuana and leaves, goes back and rendezvous with Candis Koch.

      . The prosecutor mentioned the state of Johnson’s home twice: "And they described what they saw. They saw a home that had blood smears on the wall, as if somebody had been feeling their way through the house touching the walls.” The prosecutor also stated, "Sergeant Mortenson * * * saw the shell casings, he saw the blood smears.”


author: ANDERSON, PAUL H., Justice.

text:
    Ted GRADJELICK et al., Petitioners, Appellants, v. Leland HANCE et al., Respondents, Connie Jo Klosterman, Respondent.
    No. C4-00-2161.
    Supreme Court of Minnesota.
    June 27, 2002.

      Andrew S. Birrell, R. Travis Snider, Bir-rell & Newmark, Ltd., Minneapolis, for Appellant.
    Jerome B. Abrams, Lisa M. Lamm, Abrams <& Smith, P.A., Minneapolis, for Respondent Hance.
    Timothy J. Leer, Johnson & Condon, P.A., Minneapolis, for Respondent Kloster-man.
   OPINION

ANDERSON, PAUL H., Justice.

Appellants Ted and Niki Gradjelick brought a negligence action against respondents Leland and Patricia Hance and respondent Connie Jo Klosterman for injuries arising out of an apartment building fire. The Gradjelicks’ suit is based on the Hances’ alleged knowledge of building and fire code violations and unsafe conditions. The Hances brought a motion for summary judgment, arguing that they had no actual or constructive knowledge of any fire code violations. The district court granted the Hances’ motion and dismissed the Gradjelicks’ action on the grounds that the Hances relied upon an official building inspection report. The Gradjelicks appealed and the Minnesota Court of Appeals affirmed. The court of appeals concluded that a landowner relying on an official inspection lacks constructive knowledge of code violations and therefore cannot be liable in an ordinary negligence action or in an action based on negligence per se. We reverse.

Leland Hance purchased a mixed-use building at 204 Water Street in Excelsior, Minnesota in 1982. During all times relevant to this case, the first floor of this building was occupied by a hardware store and the second floor consisted of nine residential apartments. The Gradjelicks and Connie Jo Klosterman were tenants of the Hances and occupied units two and nine, respectively. These units were located directly across the common hallway from each other. The Hances lived in Colorado at the time of the fire and since 1992 have employed a manager for the apartments.

On April 25, 1999, at approximately 6:30 a.m., the Gradjelicks awoke to the smell of smoke coming from the hallway. Mr. Gradjeliek looked out their front door and discovered that the building was on fire. Mrs. Gradjeliek called 911, opened their bedroom window, and waited for firefighters to help them evacuate. After the firefighters arrived, Mr. Gradjeliek watched as they helped his wife out of the window. While he was waiting to be helped down the ladder, he felt intense heat on his back and was “forced” to fall out of the window. He fell to the ground, suffering a multiple compound fracture of his right leg, a severe cut on his foot from heel to toe, injuries to his back and knee, and first-degree burns on his back and legs.

Later that morning, after the fire was put out, a Deputy State Fire Marshal Investigator inspected the building and concluded that the fire started when Klosterman fell asleep while smoking. Klosterman had apparently been drinking heavily the night before and, when tested that morning, had a blood alcohol concentration of 0.34. Klosterman was subsequently charged with negligent fire, a felony under Minn.Stat. § 609.576, subd. 1(b)(3) (2000).

The Gradjelicks brought a negligence action against the Hances and Klosterman in Hennepin County District Court. They alleged that (1) the fire was caused by Klosterman’s negligence, (2) the Hances negligently maintained the premises, and (3)Klosterman’s and the Hances’ negligence was the proximate cause of their injuries. Both the Gradjelicks and Klost-erman retained separate experts to investigate the fire. In an affidavit, the Gradjel-icks’ expert, Robert Schroeder, concluded that the building did not meet the requirements of the 1997 Uniform Fire Code. Specifically, Schroeder noted the following conditions:

(1) failure to eliminate or adequately cover transom openings;
(2) unrated doors in the common hallway;
(3) windows from the Gradjelicks’ unit to the hallway did not contain rated wire glass;
(4) no self-closing mechanism on the door to Klosterman’s unit; and
(5) improper wainscoting treatment in common hallway.

Schroeder stated that, in his opinion, but for these conditions the fire could have been contained in Klosterman’s apartment.

In a separate statement, Klosterman’s expert, John Slanga, noted similar conditions and code violations in Klosterman’s apartment that in his opinion led to the spread of the fire from Klosterman’s apartment. These conditions and violations included:

(1) no smoke detector in Klosterman’s unit;
(2) improper paneled-over window from Klosterman’s kitchen to unit # 8;
(3) improper glass transom between Klosterman’s unit and hallway;
(4) improper door between Klosterman’s unit and hallway;
(5) no self-closing mechanism on door to Klosterman’s unit; and
(6) no “positive latching” on door to Klosterman’s unit.

Additionally, Slanga noted other dangerous conditions and code violations in the hallway that affected safety and escape, including:

(1) improper fire resistance rating in the hallway due to glass windows and transoms;
(2) no required smoke barrier partitions;
(3) improperly installed smoke detectors (18 inches below ceiling);
(4) unrated hallway doors (below 20 minute construction);
(5) “flame spread rating” of means of egress excessive (not Class A or B);
(6) no self-closing mechanisms on hallway doors; and
(7) no exit signs.

Slanga also indicated that proper installation of the smoke detectors could have been performed by reading the installation instructions. According to Slanga, because the installation distance of 18 inches below the ceiling was improper, the detectors were ineffective due to delayed operation.

The Gradjelicks commenced discovery and, although they argue that their discovery was not complete by the time of the summary judgment motion, they were able to obtain some relevant information from the Hances. Specifically, the Gradjelicks learned that there had been no structural renovations of the building during the period of the Hances’ ownership until the fire — 1982 to 1999. But during this time the Hances had made several repairs, including (1) hardwiring the electrical system for the smoke detectors in the hallway, and (2) replacing a pane of broken glass in an interior hallway window in the Gradjelicks’ apartment.

Based on this discovery information, as well as on the complaint, Slanga’s statement, and Schroeder’s affidavit, the Grad-jelicks argue that the transformation of the building from office space to residential failed to create a secure hallway. They assert that there was an unsafe condition in violation of the applicable building and fire codes and, because the Hances made subsequent repairs, the Hances were aware of this unsafe condition. Additionally, the Gradjelicks assert that there was a missing smoke detector in Klosterman’s apartment.

The Hances moved for summary judgment, arguing that they had no actual or constructive knowledge of any dangerous conditions or code violations at the time of the fire. They contend that they lived in Colorado, had no independent knowledge of the fire code, and instead relied on an annual building inspection and communications from their property manager, Troy Stottler, regarding any unsafe conditions or code violations. The Hances submitted several affidavits in support of their motion for summary judgment, including affidavits from Stottler, Leland Hance, and Excelsior’s Fire Marshal, Scott Anding.

According to these affidavits, Excelsior requires properties to pass an annual building inspection by the fire department in order to obtain a multiple dwellings permit for commercial rental properties. The annual inspection is made to determine whether the property meets the requirements of the Uniform Fire Code. According to Anding, Excelsior adopted the 1997 Uniform Fire Code in 1998. However, Anding stated that the city interprets the code to require that nonconforming structural conditions in buildings that existed when the code was adopted be corrected only upon commencement of new construction. Anding also stated that, in his annual building inspections, he looks for conditions that can be corrected without construction activity. If no such conditions exist, it is Anding’s standard practice to issue an annual permit.

The record reveals that three months before the fire, Anding inspected the Hances’ building. Anding found no code violations that could be corrected without construction activity and issued the multiple dwellings permit. Additionally, And-ing prepared a one-page summary of his inspection in which he indicated “No Hazards Observed.” He gave the inspection report to Stottler. The record further shows that, from the date of the inspection in January until the time of the fire in April, no complaints regarding unsafe conditions in the building were communicated to Anding, Stottler, or the Hances.

The Gradjelieks presented two main arguments in opposition to the summary judgment motion. First, they argued that the Hances knew or should have known of the defective conditions. Specifically, they asserted that the Hances knew or should have known about the conditions because the defects were numerous and obvious and that the Hances were directly involved with some of the defects, including the installation of the electrical system for the smoke detectors and repairing a window in the Gradjelieks’ apartment. The Gradjel-icks argued that the Hances cannot rely on the inspection report revealing no violations because the Hances were directly involved with the defective conditions. In their second main argument, the Gradjel-icks argued that summary judgment was inappropriate because discovery was not complete.

The district court granted the Hances’ motion for summary judgment on the grounds that the Gradjelieks failed to show that the Hances had actual or constructive knowledge of the code violations. The court concluded that, under Bills v. Willow Run I Apartments, 547 N.W.2d 693, 695 (Minn.1996), the Hances were relieved of any duty to “re-inspeet” the building for hazards after receipt of the Fire Marshal’s inspection report and receipt of the multiple dwellings permit. Additionally, the court noted that the Hances fully relied on the inspection report and had no independent knowledge of the applicable building code.

The Gradjelieks appealed and the court of appeals affirmed. The court of appeals concluded that the district court applied the correct legal standard from Bills. Specifically, the court of appeals concluded that a landowner relying on an official inspection lacks constructive knowledge of code violations, both in an ordinary negligence action and in negligence per se. The Gradjelieks then petitioned this court for review of the court of appeals’ decision.

I.

On appeal from summary judgment, we must determine whether the lower courts applied the correct legal standard and whether there are genuine issues of material fact for trial. DLH, Inc. v. Russ, 566 N.W.2d 60, 69 (Minn.1997). In a negligence action, the defendant is entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the claim: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of the duty being the proximate cause of the injury. Lubbers v. Anderson, 539 N.W.2d 398, 401 (Minn.1995). A non-moving party cannot defeat a summary judgment motion with unverified and con-clusory allegations or by postulating evidence that might be developed at trial. See id. Instead, if the nonmoving party bears the burden of proof on an issue, that party must present sufficient evidence to permit reasonable persons to draw different conclusions. DLH, 566 N.W.2d at 71. When reviewing a summary judgment ruling, we consider the evidence in the light most favorable to the nonmoving party. Hoover v. Norwest Private Mortg. Banking, 632 N.W.2d 534, 542 (Minn.2001).

We first address whether the district court applied the correct legal standard. Minnesota follows the common law rule that landlords are generally not hable — have no duty of care — to tenants for damages caused by defective conditions on the premises. See, e.g., Johnson v. O’Brien, 258 Minn. 502, 504-06, 105 N.W.2d 244, 246-47 (1960); Breimhorst v. Beckman, 227 Minn. 409, 417, 35 N.W.2d 719, 726 (1949). Several exceptions apply to this common law rule. The exception most applicable to the facts of this case is the hidden dangerous condition exception. This exception creates a duty of care in the landlord such that the landlord may be liable to tenants for breach of that duty when there is a hidden dangerous condition on the premises of which the landlord is aware, but the tenant is not. Breimhorst, 227 Minn. at 417, 35 N.W.2d at 726. Further, a landlord’s awareness of a hidden dangerous condition is not limited to actual knowledge. Instead, we have slightly expanded common law landlord liability, holding that a landlord may be liable to a tenant for defective conditions on the premises if the landlord should have known of the danger and if the tenant, exercising due care, would not discover the danger. Johnson, 258 Minn. at 506, 105 N.W.2d at 247 (holding that constructive knowledge of a dangerous condition is also a basis for landlord liability).

Another exception potentially applicable to the facts of this case is the “common area” exception.

A landlord who retains possession and control of stairways and similar building facilities for the common use of the tenants therein, although not an insurer of the safety of these facilities, owes a duty of exercising ordinary care to see that such stairways and facilities are originally constructed and subsequently maintained in a reasonably safe condition for the use of tenants who are themselves exercising ordinary care.

Nubbe v. Hardy Cont’l Hotel Sys. of Minnesota, Inc., 225 Minn. 496, 499, 31 N.W.2d 332, 334 (1948) (emphasis in original). We also recognize that a landlord owes a duty of care to tenants when the landlord repairs the premises. See, e.g., Canada By and Through Landy v. McCarthy, 567 N.W.2d 496, 504 (Minn.1997) (citing Wood v. Prudential Ins. Co. of America, 212 Minn. 551, 4 N.W.2d 617 (1942)).

We have recognized that landlords may be liable under a theory of negligence per se for violations of applicable building or fire codes if the persons harmed by the violation are within the intended protection of the code and if the harm suffered is of the type the code was intended to prevent. Alderman’s, Inc. v. Shanks, 536 N.W.2d 4, 8 (Minn.1995). However, we have restricted situations in which violation of the Uniform Building Code (UBC) will result in negligence per se for landlords. Bills, 547 N.W.2d at 695.

In Bills, a tenant who fell on an icy landing sued his landlord under a negligence per se theory for violation of the UBC. 547 N.W.2d at 693-94. The tenant alleged that the handrails and risers on the landing violated the UBC and were the proximate cause of his injuries. Id. at 694. In our decision, we adopted a new standard for landlord liability governing violations of the UBC in negligence per se actions, holding that a landlord is not negligent per se for code violations unless the following four elements are present:

(1) the landlord or owner knew or should have known of the Code violation;
(2) the landlord or owner failed to take reasonable steps to remedy the violation;
(3) the injury suffered was the kind the Code was meant to prevent; and
(4) the violation was the proximate cause of the injury or damage.

Id. at 695.

The tenant in Bills did not offer any evidence that the landlord knew of the violations other than the fact of the code violation itself. Id. Further, we noted that the landlord reasonably relied on the reports of a state building inspector. Id. at 694. We then implied that a landlord has no duty to “re-inspect” buildings after a favorable inspection and may reasonably rely upon a state building inspector’s inspection report and occupancy permit regarding the premises’ safety. Id. at 694-95. Because the tenant in Bills did not present evidence that showed the landlord’s knowledge of the code violation, we affirmed the district court’s directed verdict for the landlord. Id. at 695. Implicit in our holding was that the mere fact of a code violation does not constitute constructive knowledge of the violation.

The Gradjelicks argue that the district court and the court of appeals misconstrued Bills and improperly extended its holding from the negligence per se context to ordinary negligence. Specifically, the Gradjelicks argue that while reliance on an inspector’s report may preclude liability in negligence per se under Bills, a proper interpretation of Bills does not allow a court to conclude that the Gradjelicks are unable to show the Hances’ knowledge of code violations under an ordinary negligence theory. The Hances argue that the lower courts’ application of Bills was proper. Accordingly, we must examine in some detail how those courts construed Bills.

The district court began its analysis by correctly stating Minnesota’s general standard for landlord liability for defective conditions. The court also correctly stated the negligence per se standard from Bills regarding code violations. However, when ruling on the summary judgment motion, it appears that the court only analyzed the elements of negligence per se instead of considering the elements of an ordinary negligence claim as well. Thus, it appears that the district court erred in its interpretation and application of Bills.

In its analysis, the district court confused and failed to separate the liability standards for ordinary negligence and for negligence per se. The court acknowledged the Gradjelicks’ allegations of several code violations and their allegation that the Hances improperly installed the. fire alarms. But when citing Bills, the court made the following statement, “Plaintiffs have failed to show that Defendants knew or should have known of any fire code violations, and that is a crucial element to Plaintiffs claim under Minnesota law.” (Emphasis added.) This statement is misleading. Actual or constructive knowledge of code violations is a required element of a negligence per se claim for UBC violations under Bills, but actual or constructive knowledge of code violations is not a required element in an ordinary negligence claim. Under the hidden dangerous condition exception to the general standard of landlord liability noted above, plaintiffs are required to show a landlord’s actual, or constructive knowledge of a hidden dangerous condition. Such hidden dangerous conditions may include, but are not limited to, code violations; therefore, the district court was in error when it stated that the Hances’ actual or constructive knowledge of a code violation was a “crucial element” of the Gradjelicks’ claim under Minnesota law.

The district court also failed to consider other exceptions upon which landlord liability can be founded in ordinary negligence, including the “common area” and “negligent repair” exceptions. Neither of these exceptions requires actual or constructive knowledge of a code violation. See Canada, 567 N.W.2d at 504 (addressing the negligent repair ■ exception); Nubbe, 225 Minn. at 499, 31 N.W.2d at 334 (addressing the common area exception). Instead, the only required elements to establish a claim under these exceptions are duty, breach, causation, and damages — the elements of ordinary negligence. See Hudson v. Snyder Body, Inc., 326 N.W.2d 149, 157 (Minn.1982). Thus, to the extent that the court required actual or constructive knowledge of a code violation as a prerequisite to landlord liability, it erred. Specifically, the court applied the incorrect legal standard, conflating the ordinary negligence and negligence per se standards in the context of landlord liability. This error was compounded when the court of appeals apparently accepted the district court’s analysis, concluding that “if the facts alleged failed to fulfill the knowledge requirement under negligence per se theory, identical facts asserted as common law negligence likewise fail.” Gradjelick v. Hance, 627 N.W.2d 708, 713 (Minn.App.2001).

While both the district court and the court, of appeals used Bills to support their conclusions, they have incorrectly interpreted our holding. In Bills, we only discussed and applied a standard regarding negligence per se. 547 N.W.2d at 695. We did not indicate that we were developing the - law regarding ordinary negligence, nor did we comment on how UBC violations should be analyzed under an ordinary negligence theory. We only intended to bring the negligence per se analysis for landlord violations of the UBC more in line with the standard used for ordinary negligence in landlord liability, rather than creating a rule that UBC violations must always be analyzed under negligence per se. ■ See id. Accordingly, we added a requirement already present in ordinary negligence claims for landlord/tenant liability for hidden dangerous conditions — a requirement for actual or constructive knowledge of the condition. Id. We also concluded that we would not impute constructive knowledge of a code violation to the landlord; instead, we indicated that a landlord’s reasonable reliance on an official inspection report and occupancy permit may prevent a finding of constructive knowledge. Id. at 694. However, we did not hold that we intended for a negligence per se analysis to supplant an analysis under ordinary negligence. A separate analysis is necessary under each theory because the elements are different. Actual or constructive knowledge of code violations is a required element under negligence per se, but actual or constructive knowledge of hidden dangerous conditions is a required element under the hidden dangerous conditions theory of ordinary negligence and such conditions are not coextensive with code violations.

To summarize- our analysis, we conclude that (1) Bills articulated a standard for negligence per se based on UBC violations; (2) Bills did not create a unified standard such that allegations of code violations must be analyzed only under negligence per se; and (3) analyses under negligence per se according to Bills and ordinary common law negligence are both available in landlord liability cases when UBC violations are alleged. Therefore, the district court erred because it analyzed only whether the Gradjelicks were able to satisfy the elements of negligence per se under Bills instead of analyzing the Grad-jelicks’ claim under an ordinary negligence theory. Accordingly, we hold that the court of appeals erred when it concluded that it was “unable to articulate a principled distinction between per se and common law negligence theories for the purposes of this analysis.” Gradjelick, 627 N.W.2d at 713.

II.

Having clarified the proper legal standards applicable to the Gradjelicks’ Claims, we next determine whether there are genuine issues of material fact that preclude summary judgment under Minn. R. Civ. P. 56.03. Summary judgment is appropriate if there is no genuine dispute regarding the material facts and the moving party is entitled to judgment under the law applicable to such facts. DLH, 566 N.W.2d at 69. Accordingly, the Gradjel-icks must have presented sufficient evidence regarding a material fact to permit reasonable persons to draw different conclusions in order to survive summary judgment. Id. at 71. On the other hand, the Hances are entitled to summary judgment when the record reflects a complete lack of proof on any of the four essential elements of the ordinary negligence claim: (1) the existence of a duty of care, (2) a breach of that duty, (3) an injury, and (4) the breach of the duty being the proximate cause of the injury. See Lubbers, 539 N.W.2d at 401. Similarly, the Hances are entitled to summary judgment if there is a complete lack of proof on any of the essential elements of their negligence per se claim: (1) the landlord or owner knew or should have known of the code violation; (2) the landlord or owner failed to take reasonable steps to remedy the violation; (3) the injury suffered was the kind the code was meant to prevent; and (4) the violation was the proximate cause of the injury or damage. See Bills, 547 N.W.2d at 695.

Ordinarily, we would separately examine whether there were disputed facts under each claim and make a ruling on whether summary judgment was appropriate. In this case, however, a remand to the district court is more appropriate. While the correct legal standard appears to have been applied with respect to negligence per se, we remand because the lower courts did not apply the correct legal standard to the Gradjelicks’ separate ordinary negligence claims. Therefore, rather than rule only on part of the Gradjelicks’ total claims, we remand for application of the correct legal standards in light of the facts alleged.

Reversed and remanded to the district court for further proceedings in accordance with this opinion.

      . In addition to the 1997 Uniform Fire Code, the Gradjelicks also assert that there were violations of the National Fire Protection Association 101 life-safety code and the Uniform Building Code.

      . The parties refer to Slanga's statement as an "affidavit,” but we note that Slanga’s statement is neither sworn nor notarized. At oral argument, counsel for the Gradjelicks admitted that the statement was neither sworn nor notarized, but explained that it was signed, presented, and relied upon by both the district court and the court of appeals.

      . A per se negligence rule substitutes a statutory standard of care for the ordinary prudent person standard of care, such that a violation of a statute (or an ordinance or regulation adopted under statutory authority) is conclusive evidence of duty and breach. See, e.g., Alderman’s, Inc. v. Shanks, 536 N.W.2d 4, 7-10 (Minn.1995) (addressing fire codes specifically); Seim v. Garavalia, 306 N.W.2d 806, 810 (Minn.1981) (explaining negligence per se).

      . The court cited Broughton v. Maes, 378 N.W.2d 134 (Minn.App.1985), rev. denied (Minn. Feb. 14, 1986). In Broughton, the court of appeals discussed the principle that landlords generally are not liable to tenants for damages caused by defective conditions on the premises. Id. at 135. The court also discussed several exceptions to this rule, in-eluding (1) hidden dangerous condition; (2) common area; and (3) negligent repair. Id. The court also discussed an exception when land is leased for purposes involving admission of the public. Id. The case before us does not involve land leased for admission of the public.

      . It should be noted that the district court's order and memorandum are not completely silent regarding the correct standard. The introduction to the court’s memorandum refers to both code violations and hazardous conditions, but the analysis consistently focuses on and specifically refers only to code violations.