author: MEYER, Justice. ANDERSON, G. BARRY, Justice GILDEA, Justice

text:
    Cassandra J. JENKINS, Appellant, v. AMERICAN EXPRESS FINANCIAL CORP., Respondent, Minnesota Department of Employment and Economic Development, Respondent.
    No. A04-2308.
    Supreme Court of Minnesota.
    Sept. 14, 2006.

      Katherine L. MacKinnon, St. Louis Park, MN, for appellant.
    Lee B. Nelson, Linda A. Holmes, MN Dept, of Employment and Economic Development, St. Paul, MN, for respondent Department of Employment and Economic Development.
    Charles H. Thomas, Mankato, MN, for amicus curiae Southern Minnesota Regional Legal Services, Inc.
   OPINION

MEYER, Justice.

Appellant Cassandra Jenkins seeks reversal of the court of appeals’ decision affirming her disqualification from the receipt of unemployment compensation on grounds of a discharge for misconduct. At issue is whether absenteeism due to incarceration is misconduct when the employer fails to verify employment for purposes of a work-release program. Under the unique facts of this case, we conclude that the employee’s absence from work was not misconduct, and we reverse the court of appeals.

Jenkins began working for respondent American Express Financial Corporation (employer) as an insurance specialist on November 27, 2000. In January 2004 she was convicted of assaulting a nurse while being treated for a broken ankle. She was then sentenced to 30 days in jail with work-release privileges under the Huber law, Minn.Stat. § 631.425 (2004). Jenkins was scheduled to begin her sentence on April 18, 2004.

Before she began serving her sentence, Jenkins was told by her employer that the employer was going to cooperate with her work-release privileges and provide verification of her employment to the workhouse. She twice discussed her conviction and sentence with Joel Hansen, her supervisor. According to Jenkins, Hansen indicated that employees had participated in work release in the past and that Jenkins would be able to maintain her employment while on work release.

Jenkins reported to the workhouse on Sunday, April 18, 2004, at which time she discovered that Hansen had not verified her employment, so she was not able to report for work the next day. Jenkins made repeated attempts over the next several days to contact Hansen and secure his cooperation. She was only able to speak to him on one occasion at which time he was noncommittal and indicated he “would get back to her.” A friend of Jenkins’ and Jenkins’ social worker, David Huberty, also attempted to reach Hansen. Huberty left Hansen a voicemail message “clearly outlining that all he had to do was to make one phone call to the [wjorkhouse to facilitate Ms. Jenkins’ []work release[]. [Huberty] even left him the name of the contact person at the [w]orkhouse and that person’s direct phone number.” The employer did not appear at the administrative hearing on Jenkins’ case so the employee’s version of these events is undisputed.

On April 22, 2004, the employer sent a letter to Jenkins advising her that if she did not return to work on Monday, April 26, the employer would assume Jenkins voluntarily resigned. Still lacking verification of her employment, Jenkins was unable to report for work on April 26, and her employment was terminated.

Jenkins filed an application for unemployment benefits and established a benefit account with the Department of Employment and Economic Development. The department adjudicator determined that Jenkins had been discharged by her employer for misconduct and therefore was disqualified from the receipt of unemployment benefits. Jenkins appealed. Following an evidentiary hearing, the unemployment law judge (ULJ) found that Jenkins was discharged for employment misconduct because she was unavailable for work due to her incarceration. On further appeal, a senior unemployment review judge declined to conduct further proceedings and adopted the decision of the ULJ as the final agency decision pursuant to Minn.Stat. § 268.105, subd. 2a (2004).

The court of appeals affirmed the department’s denial of benefits. Jenkins v. Am. Express Fin. Corp., 702 N.W.2d 908, 914 (Minn.App.2005). The court determined that the evidence in the record reasonably supported the ULJ’s finding that Jenkins had been discharged for absenteeism. Id. at 912-13. The court acknowledged that Hansen’s inaction “may have played a role” in creating Jenkins’ unemployment but found that Jenkins was not among those the unemployment insurance program was designed to assist: “workers who are unemployed through no fault of their own.” Id. at 913 (quoting Minn.Stat. § 268.03, subd. 1 (2004)). “[T]he fact remains that [Jenkins] engaged in the behavior that led to her incarceration.” Jenkins, 702 N.W.2d at 913. The court also found that while it could not “condone the actions of the employer,” Hansen’s undisputed promise to allow Jenkins to continue her employment while on work release created “no duty to call and verify [Jenkins’] employment.” Id. at 914.

Under the standard of review applicable to employment benefit cases, we examine a senior unemployment review judge’s factual findings in the light most favorable to the decision, and we will not disturb those findings as long as there is evidence that reasonably tends to sustain them. Schmidgall v. FilmTec Corp., 644 N.W.2d 801, 804 (Minn.2002); Markel v. City of Circle Pines, 479 N.W.2d 382, 383-84 (Minn.1992). Whether an employee has engaged in conduct that disqualifies him from unemployment benefits is a mixed question of fact and law. Schmidgall, 644 N.W.2d at 804. Specifically, the determination of whether an employee was properly disqualified from receipt of unemployment compensation benefits is a question of law on which we are free to exercise our independent judgment. Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989).

We have noted that “[t]he unemployment compensation statute is remedial in nature and must be liberally construed to effectuate the public policy set out in Minn.Stat. § 268.03,” which states that the unemployment benefits provisions are “ ‘to be used for the benefit of persons unemployed through no fault of their own.’” Prickett v. Circuit Science, Inc., 518 N.W.2d 602, 604 (Minn.1994) (citing Minn. Stat. § 268.03 (1992)). We have stated that this policy urges us to narrowly construe the disqualification provisions. Id.

An otherwise eligible employee will be disqualified from the receipt of unemployment benefits for a variety of reasons, including a discharge for employment misconduct or a discharge for aggravated employment misconduct. Minn.Stat. § 268.095, subd. 4 (Supp.2003). Employment misconduct is defined as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee, or (2) that demonstrates a substantial lack of concern for the employment.” Minn. Stat § 268.095, subd-. 6(a) (Supp.2003). But “[ijnefficieney, inadvertence, simple unsatisfactory conduct, * * * [or] conduct an average reasonable employee would have engaged in under the circumstances * * * [is] not employment misconduct.” Id. The misconduct definitions set out in the act are exclusive “and no other definition shall apply.” Minn.Stat. § 268.095, subd. 6(e) (2004).

Absence from work under circumstances within the control of the employee, including incarceration following a conviction for a crime, has been determined to be misconduct sufficient to deny benefits. Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d 43, 46 (Minn.App.1984); cf. Grushus v. Minnesota Mining & Mfg. Co., 257 Minn. 171, 176, 100 N.W.2d 516, 520 (1960). In Grushus v. Minnesota Mining & Manufacturing Co., we found that an employee’s incarceration did constitute misconduct such that he should be denied unemployment benefits. Id. Grushus was unable to accept an offer of employment following a lay-off because he was incarcerated on burglary and larceny charges. Id. at 172, 100 N.W.2d at 517-18. The agency then administering the state’s unemployment benefits program determined that his incarceration did not disqualify him for benefits from the time he was released from custody. Id., 100 N.W.2d at 518. We reversed because we found that Grushus’s failure to accept the offer of employment was due to his own fault. Id. at 176, 100 N.W.2d at 520. Importantly, though, we declined to adopt a rule that absenteeism resulting from incarceration was misconduct as a matter of law. Instead, we directed the agency to base its determinations “upon the facts in each particular case, [leaving] the commissioner * * * with the responsibility of finding the facts as to ‘good cause’ and ‘fault’ within the intent and purpose of the act.” Id.

We turn to the facts of this case to determine whether the employee engaged in misconduct. The first statutory definition of misconduct is conduct “that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee.” Minn. Stat. § 268.095, subd. 6(a)(1). This definition is an objective determination: was the employer’s expectation for the employee reasonable under the circumstances? The court of appeals applied this definition and determined that because the absenteeism resulted from Jenkins’ criminal conviction it was misconduct because American Express was not obligated to verify Jenkins’ employment. Jenkins, 702 N.W.2d at 914. The employer in this case does not argue that Jenkins’ off-the-job behavior violated its standard of behavior for its employees. Rather, the employer contends that it was the simple fact of Jenkins’ failure to report to work that violated the employer’s reasonable expectation.

But the facts here lead us to conclude that it was unreasonable for the employer to expect Jenkins to report to work by April 26: the employer allowed Jenkins to continue working between the time of her conviction in March and the time she reported to the workhouse in April; the employer knew in advance of April 18 that Jenkins would be able to participate in a work-release program if the employer verified her employment; the employer told Jenkins that employees in the past had been allowed to participate in work-release programs; the employer told Jenkins that she would be able to continue working while she served her sentence; Jenkins and others provided the employer with the name and phone number of the person to contact to verify Jenkins’ employment; and the employer failed to verify Jenkins’ employment despite good faith efforts on the part of Jenkins and others to obtain the verification.

Jenkins’ case is distinguishable from cases in which absenteeism due to incarceration was found to be misconduct: Grushus; Smith v. American Indian Chemical Dependency Diversion Project; and the Colorado case the court of appeals relied on specifically, Smith v. Industrial Claim Appeals Office of the State of Colorado, 817 P.2d 635, 636 (Colo.Ct.App.1991). In all three of those cases, the claimant simply failed to show up at work because he had been incarcerated. See Grushus, 257 Minn. at 172, 100 N.W.2d at 517-18 (failing to respond to a recall notice because he was in jail); Smith v. Am. Indian Chem. Dependency Diversion Project, 343 N.W.2d at 44 (missing three days of work because of incarceration); Smith v. Indus. Claim Appeals Office of the State of Colorado, 817 P.2d at 636 (failing to report to work because he was in jail). In both of the Smith cases, the claimant did not contact his employer until after he had missed work because he had been incarcerated. 343 N.W.2d at 44. The Grushus case also involved deception to the employer as to the reasons for the claimant’s inability to return to work. 257 Minn. at 172, 100 N.W.2d at 517-18.

For the above reasons, we conclude that the first statutory definition of misconduct relied on by the court of appeals is not satisfied.

The second statutory definition of misconduct is whether the employee “demonstrate[d] a substantial lack of concern for [her] employment.” Minn.Stat. § 268.095, subd. 6(a)(2). The ULJ in this case determined that “Jenkins was discharged for employment misconduct as it was her conduct which caused her incarceration. Her conduct was intentional and displayed clearly a substantial lack of concern for her employment.” Essentially, the judge concluded that the assault Jenkins committed represented misconduct from which Jenkins could not redeem herself in that Jenkins’ criminal act that resulted in jail time was misconduct as a matter of law for unemployment benefit purposes. This type of conclusion is not permitted by our case law. Under Gru-shus the inquiry must focus on the facts in this particular case as to whether Jenkins’ misconduct was established by evidence that demonstrates a substantial lack of concern for her employment. 257 Minn. at 176, 100 N.W.2d at 520.

Committing a crime that results in a period of incarceration may be evidence that an employee lacked concern for her employment. In this case, however, there is substantial evidence that Jenkins’ inability to report to work was not caused by a substantial lack of concern for her employment. The record establishes that Jenkins made diligent efforts to report to work. She informed her employer of her conviction and the availability of work release to allow her to continue her employment; she obtained a verbal assurance from the employer that the employer would cooperate with the work-release program; as soon as she became aware that she would not be able to report to work because her employment had not been verified, she made every effort to contact the employer; and she provided her employer with the necessary Information to permit her release from the workhouse. The evidence as a whole amply demonstrates that she engaged in significant attempts to report for work and continue her employment. Her conduct does not demonstrate a substantial lack of concern for her employment. As noted above, this case is distinguishable from the Grushus and Smith cases relied on by the court of appeals because Jenkins established that she could have come to work despite her incarceration.

We do not hold that an employer that refuses to participate in the Huber program will,always be estopped from claiming employee misconduct in a subsequent claim for unemployment compensation benefits. Under our holding, an employer remains free to contest an unemployment compensation claim on the basis of employee misconduct if the underlying conviction or the absence from work demonstrates a substantial lack of concern for the employment under Minn.Stat. § 268.095, subd. 6(a)(2) or, alternatively, there was aggravated misconduct under Minn.Stat. § 268.095, subd. 6a (2004).

The department’s argument that under anything but a very narrow rule accounting for the employer’s reasonable expectations an employer will be responsible to take any of a variety of actions to ensure an employee’s ability to work (furnishing a bus pass, securing housing, or child care, etc.) is unavailing. It is reasonable for an employer to expect an employee to make the arrangements within his or her power to facilitate his or her employment. In Prickett we decided — after a careful review of the facts and prior to the integration of the employer’s reasonable expectations into the misconduct definition— that it was not misconduct for an employee to miss work where he only had three days to arrange for child care in response to a shift change. 518 N.W.2d at 605. The Prickett decision did not establish a rule that an employer must provide child care to facilitate an employee’s attendance. Likewise, our decision here does not preclude employers from claiming misconduct because an employee was in jail and unable to continue working while on work release. Whether those circumstances justify a finding of misconduct, per Gru-shus, will be judged on those facts.

The department also suggests that the employer might, by failing to perform some ministerial duty, sacrifice the “right” to expect an employee to observe some certain standard of behavior. But we emphasize, again, that we are not establishing a rule that employers must allow an employee to continue in her or his employment while on work release. Indeed, the duty to ensure that work-release sentences are executed remains on the sheriff, not on the employer, and nothing in our ruling here changes that. See Peterson v. Fred Vogt & Co., 495 N.W.2d 875, 879 (Minn.App.1993) (weighing, as a factor in determination that employee did not commit misconduct, employer’s failure to make “even a minimal attempt to accommodate” employee by signing a statement necessary for employee to continue work as a driver).

We hold that under the facts presented, Jenkins’ absence from work was not misconduct that disqualified her from receiving unemployment benefits. The court of appeals’ decision is reversed.

Reversed.

ANDERSON, G. BARRY, Justice

(concurring).

I concur with the result.

GILDEA, Justice

(dissenting).

I respectfully dissent. Jenkins’ employer had a right to reasonably expect that Jenkins would show up for work each day that she was scheduled. Jenkins did not show up for work because she was in jail for committing a crime. In my view, Minnesota law does not entitle Jenkins to unemployment benefits.

The starting point for this statutory interpretation case is the cardinal rule that we must construe the statute so as to give effect to all of its provisions. Smith v. Barry, 219 Minn. 182, 187, 17 N.W.2d 324, 327 (1944) (“We have held that a statute is to be construed as a whole so as to harmonize and give effect to all of its parts.”). The “public purpose” of Minnesota’s unemployment insurance program is to provide temporary financial support to workers who lose their jobs “through no fault of their oivn.” Minn.Stat. § 268.03, subd. 1 (2004) (emphasis added). We have said that “we cannot ignore the statement of public policy” in determining whether benefits are available under the statute. Grushus v. Minnesota Mining & Mfg. Co., 257 Minn. 171, 175, 100 N.W.2d 516, 519 (1960). While the majority acknowledges the legislative purpose, the result the majority reaches ignores it. Jenkins did not lose her job “through no fault of her own.” She lost her job because she did not show up for work.

The misconduct provision in the statute is easily read so as to give effect to the legislative purpose. Under the statute, an employee who commits misconduct is not entitled to benefits. See Minn.Stat. § 268.095, subd. 4(1) (Supp.2003). The statute defines misconduct as “any intentional, negligent, or indifferent conduct, on the job or off the job (1) that evinces a serious violation of the standards of behavior the employer has the right to reasonably expect of the employee * * Minn.Stat. § 268.095, subd. 6(a) (Supp. 2003). The standard of behavior at issue in this case is showing up for work. There is no dispute that an employer’s expectation that its employees show up for work is reasonable. There likewise is no dispute that Jenkins violated this standard of behavior. She was discharged because she did not come to work for six straight days. Thus, under the plain language of Minn. Stat. § 268.095, subd. 6(a), Jenkins’ absence from work was employee misconduct and she is therefore “ineligible for any unemployment benefits.” Minn.Stat. § 268.095, subd. 4.

Rather than follow the plain language, the majority’s inquiry ignores the statutory phrase “has the right to” included in Minn.Stat. § 268.095, subd. 6(a). As a result, the majority mistakenly contends that the proper inquiry under the statute is whether “the employer’s expectation for the employee [was] reasonable under the circumstances.” In posing and then responding to this question, the majority does not give effect to all of the parts of the statute in a manner that is either consistent with the statute as a whole or consistent with our precedent.

The majority, in essence, concludes that the employer forfeited its “right” to expect that Jenkins would come to work because the employer.did not verify her employment status with the jail even though Jenkins’ supervisor told her the employer would do this. But Minnesota law places no duty on employers to verify employment. See Minn.Stat. § 631.425, subd. 3 (2004) .(“If the person committed under this section has been regularly employed, the sheriff shall arrange for a continuation of the employment insofar as possible without interruption.”). Whatever we may think about Jenkins’ supervisor’s statements, we are not evaluating whether Jenkins should have been terminated or whether it was “fair” for her employer to terminate her. See Ress v. Abbott Northwestern Hosp., Inc., 448 N.W.2d 519, 523 (Minn.1989) (“The issue in this action is not whether Abbott should have terminated Nurse Ress, but whether, now that he is -unemployed, he should be denied unemployment compensation”). This is especially so because the legislature has specifically provided that “[tjhere shall be no equitable or common law * * * allowance of unemployment benefits.” Minn.Stat. § 268.069, subd. 3 (2004).

Jenkins’ employer had the right to reasonably expect that Jenkins would show up for work. When Jenkins did not show up for six straight days, her absence was employee misconduct and she is not entitled to unemployment benefits.

I would affirm.

      . Huberty did not participate in the administrative hearing on Jenkins' case, but Jenkins introduced the letter he had written describing his involvement in Jenkins’ efforts to secure work release. Reflecting the expedited nature of unemployment benefit proceedings, the applicable rules anticipate the need to consider all of the circumstances of an employee's departure in reaching unemployment benefits qualification determinations, and specifically allow hearsay evidence in keeping with that goal. Minn. R. 3310.2922 (2005).

      . Market and Schmidgall both refer to the determination made by “the commissioner.” 479 N.W.2d at 383; 644 N.W.2d at 803. At the time of the department’s review of Jenkins’ case, the statutory title of the person conducting the review of proceedings under Minn.Stat. § 268.105, subd. 2(a) (2004) was "senior unemployment review judge.”

      . Because Jenkins was discharged in April 2004, the 2003 version of the statute applies. In executing changes made by the 2003 legislature to section 268.095, the revisor’s office mistakenly changed the term "disqualified from” to "ineligible for” in subdivisions 1, 4, 7, and 8(a). See Act of May 30, 2003, 1st Spec. Sess., ch. 3, art. 2, § 20(j), (k), 2003 Minn. Laws 1460, 1477 (directing revisor to change "disqualified from’-’ to "ineligible for” only in Minn.Stat. § 268.095, subd. 12, and to recodify the subdivision to Minn.Stat. § 268.085, subd. 13b); Minn. Stat § 268.095, subds. 1, 4, 7, 8(a) (2004) ("disqualified from” restored). Since the ULJ incorrectly referenced and seemingly relied on the 2004 version of the statute (wherein the error was rectified), there is no indication that the re-visor’s error affected the outcome of Jenkins' case.

      . The majority relies on the discussion of "good cause” in Grushus and the discussion of the employee’s "good faith efforts” in Prickett. In my view, such discussion has no relevance under the current version of the statute. As we have noted, prior to 1997, "employment misconduct was undefined by statute.” Houston v. Int'l Data Transfer Corp., 645 N.W.2d 144, 149 (Minn.2002). In contrast to Grushus and Prickett, the question before us in this case does not require that we utilize common law definitions of "misconduct.” The legislature has provided the definition in the statute and our only task is to apply that definition.


source: Caselaw Access Project

author: MEYER, Justice. ANDERSON, PAUL H., Justice GILDEA, Justice ANDERSON, G. BARRY, Justice

license: Public Domain

text:
    STATE of Minnesota, Appellant, v. Scott Wade RAMEY, Respondent.
    No. A04-1056.
    Supreme Court of Minnesota.
    Sept. 14, 2006.

      Mike Hatch, Attorney General, James B. Early, Asst. Attorney General, St. Paul, MN, Douglas L. Ruth, Steele County Attorney, Owatonna, MN, for Appellant.
    Davi E. Axelson, Office of the State Public Defender, Minneapolis, MN, for Respondent.
   OPINION

MEYER, Justice.

This appeal arises from a jury trial in which respondent, Scott Wade Ramey, was found guilty of violating an order for protection. The court of appeals reversed Ramey’s conviction, holding that the district court erred in giving a no-adverse-inference instruction without Ramey’s request or consent and the prosecutor committed misconduct during the closing argument. The state petitioned for review, claiming that the court of appeals erred in applying the two-tiered analysis from State v. Caron, 300 Minn. 123, 218 N.W.2d 197 (1974), to Ramey’s claim of prosecutorial misconduct because Ramey had not made a contemporaneous objection to the asserted misconduct. We granted review on two issues: (1) whether the plain error doctrine applies to unobjected-to prosecutorial misconduct, and (2) the legal standard that should be applied in determining whether the asserted misconduct was prejudicial. We hold that, on appeal, the plain error doctrine applies to unobjected-to prosecu-torial misconduct. However, once the defendant has borne the burden of showing that the prosecutorial misconduct was error that was plain, the state bears the burden of showing that the error did not affect the defendant’s substantial rights. We reverse and remand to the court of appeals to determine whether the prosecutor’s conduct constituted plain error affecting substantial rights in accordance with this opinion.

Ramey and S.S. dated for approximately one month in 2001. In February 2003, S.S. obtained an order for protection against Ramey in response to his unwanted attempts to contact her, which sometimes amounted to 20-30 phone calls per day. On April 8, 2003, at approximately 4:00 p.m., S.S. was sleeping at her home. Ramey woke S.S. from her sleep by kissing her on the cheek. S.S. asked Ramey to leave her house multiple times, and he eventually did. S.S. called the police, and the responding officer discovered that Ra-mey had not yet been served with the order for protection.

Between 8:30 and 9:00 p.m. that night, Ramey returned to S.S.’s home. S.S. did not allow Ramey into the house and instead called 911. When law enforcement officers arrived, Ramey was still outside of S.S.’s home. The responding officer served Ramey with a short-form notification of the order for protection and explained to Ramey that he was to have no contact with S.S. Ramey signed a form acknowledging that he understood the order.

At approximately 2:00 a.m. on April 9, while S.S. was working, she received a telephone call. She recognized the caller as Ramey, immediately, hung up the phone, and called the police.

Because Ramey had three prior domestic-violence convictions, he was charged with felony violation of an order for protection. Minn.Stat. § 518B.01, subd. 14(d)(1) (2004). The case was tried to a jury, which found Ramey guilty of violating the order for protection. The court convicted Ramey and imposed a 21-month stayed sentence and a $3,000 fine, with $2,000 stayed for five years.

Ramey appealed his conviction, claiming the district court erred in giving a no-adverse-inference instruction without his request or consent and that the prosecutor had committed misconduct during the state’s closing argument. State v. Ramey, No. A04-1056, 2005 WL 832054, at *1 (Minn.App. Apr.12, 2005). Ramey did not object at trial to either the giving of the instruction or to any statements during the state’s closing argument. Id. at *2.

Applying the plain error doctrine, the court of appeals held that the district court committed plain error when it gave the no-adverse-inference instruction in the absence of Ramey’s request. Id. However, when addressing the issue of prosecutorial misconduct, the court of appeals applied the Caron two-tiered approach for reviewing prosecutorial misconduct. Ramey, 2005 WL 832054, at *2. It determined that the misconduct was of the “less serious” variety but that, when viewed in the light of the no-adverse-inference instruction, the misconduct substantially influenced the jury to convict and denied Ramey a fair trial. Id. at *3. The court of appeals did not make it clear whether it would have granted a new trial based only on the no-adverse-inference instruction. Id. The state petitioned for review.

I.

In this case, we must determine whether the court of appeals applied the correct analysis to Ramey’s claims of pros-ecutorial misconduct. This question is one of law, which we review de novo. See Modrow v. JP Foodservice, Inc., 656 N.W.2d 389, 393 (Minn.2003).

We first address whether the plain error doctrine applies to unobjected-to prosecutorial misconduct. Ordinarily, the defendant’s failure to object to an error at trial forfeits appellate consideration of the issue. State v. Darris, 648 N.W.2d 232, 241 (Minn.2002). On appeal, an unobjected-to error can be reviewed only if it constitutes plain error affecting substantial rights. Minn. R.Crim. P. 31.02. The plain error doctrine is derived from the rules of criminal procedure. See Fed. R.Crim.P. 52(b); Minn. R.Crim. P. 31.02. In 1975, we adopted Minnesota Rule of Criminal Procedure 31.02, which states: “Plain errors or defects affecting substantial rights may be considered * * * on appeal although they were not brought to the attention of the trial court.” We first cited the plain error doctrine in 1978. See, e.g., State v. Taylor, 264 N.W.2d 157, 159 (Minn.1978) (quoting Silber v. United States, 370 U.S. 717, 717-18, 82 S.Ct. 1287, 8 L.Ed.2d 798 (1962)); State v. Gruber, 264 N.W.2d 812, 817 (Minn.1978).

Prior to the development of the plain error doctrine, in Caron we adopted a two-tiered standard to be applied when determining whether prosecutorial misconduct required a new trial:

[I]n cases involving unusually serious prosecutorial misconduct this court has required certainty beyond a reasonable doubt that the misconduct was harmless before affirming. * * * On the other hand, in cases involving less serious prosecutorial misconduct this court has applied the test of whether the misconduct likely played a substantial part in influencing the jury to convict.

300 Minn. at 127-28, 218 N.W.2d at 200.

Our jurisprudence has not been completely consistent on the standard applicable to an analysis of unobjected-to prosecu-torial misconduct. For example, in the 1980s, while some cases used the Caron standard to analyze unobjected-to prosecu-torial misconduct, we also applied the plain error doctrine in other cases of unobjected-to prosecutorial misconduct. Compare State v. Brown, 348 N.W.2d 743, 747 (Minn.1984) (applying Caron standard, using failure to object as a factor, and finding that the error was harmless), with State v. Atkins, 355 N.W.2d 410, 411 (Minn.1984) (discussing “plain error” in the context of analyzing unobjected-to prose-cutorial misconduct), and State v. Bland, 337 N.W.2d 378, 384 (Minn.1983) (same).

In 1998, we decided State v. Griller, which clarified the plain error analysis. 583 N.W.2d 736 (Minn.1998). Citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997), we held that

before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

Griller, 583 N.W.2d at 740 (footnote omitted). Since Griller was decided, and particularly in the last few years, we have most often applied the plain error doctrine, rather than the Caron standard, when reviewing cases involving unobjected-to pros-ecutorial misconduct. See, e.g., State v. MacLennan, 702 N.W.2d 219, 235 (Minn.2005). By contrast, the Caron standard has mainly been limited to cases involving objected-to prosecutorial misconduct since the late 1990s. See, e.g., State v. Cabrera, 700 N.W.2d 469, 473-75 (Minn.2005) (applying the Caron standard to objected-to prosecutorial misconduct).

Applying the plain error doctrine encourages defendants to object at trial, which is preferred because the district court is in an unique position to determine what actions constitute prosecutorial misconduct. State v. Steward, 645 N.W.2d 115, 121 (Minn.2002). When a defendant does not make a contemporaneous objection, the district court does not have the opportunity to rule on the misconduct or make a determination as to whether a corrective instruction is required or appropriate. See Brown, 348 N.W.2d at 747 (“[C]arefully worded instructions by the trial court can ameliorate the effect of improper prosecutorial argument.”). Defendants should be encouraged to object at trial because “[ojbjeetions provide the trial court an opportunity to prevent or cure the effects of alleged prosecutorial misconduct.” Rairdon v. State, 557 N.W.2d 318, 323 n. 5 (Minn.1996). Although we recognized in State v. Caldwell that curative instructions will not solve every problem prosecutorial misconduct creates, 322 N.W.2d 574, 590-91 (Minn.1982), the district court is in the best position to attempt to remedy the effects of the misconduct, and it should be given this opportunity in the first instance.

In the past we have also recognized that defendants may decline to object at trial to secure reversible error on review. State v. Ray, 659 N.W.2d 736, 747 n. 4 (Minn.2003); State v. Stofflet, 281 N.W.2d 494, 497 (Minn.1979). We reemphasize here what we articulated in Ray:

We would be concerned if defense counsel were deliberately passing on such an objection with the hope of securing reversible error for appeal and, as a result, getting two chances at a jury trial. We again caution defense counsel that the failure to object to improper closing argument may waive any claim of prosecu-torial misconduct on appeal.

659 N.W.2d at 747 n. 4. Application of the plain error doctrine addresses the possibility that defendants might deliberately pass on objections.

At the same time, the plain error doctrine “tempers the blow of a rigid application of the contemporaneous-objection requirement.” United States v. Young, 470 U.S. 1, 15, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985). The doctrine employs a “careful balancing of our need to encourage all trial participants to seek a fair and accurate trial the first time around against our insistence that obvious injustice be promptly redressed.” Id. (quoting United States v. Frady, 456 U.S. 152, 163, 71 L.Ed.2d 816 (1982)). Therefore, we conclude that appellate courts should use the plain error doctrine when examining unobjected-to prosecutorial misconduct.

II.

This brings us to the second question for which we granted review: the legal standard to be applied when determining if unobjected-to prosecutorial misconduct is prejudicial. Because we have determined that the plain error doctrine applies to unobjected-to prosecutorial misconduct, the proper legal standard for determining prejudice is whether the plain error affected the defendant’s substantial rights. See Griller, 583 N.W.2d at 740. However, although the Griller formulation applies, we conclude that, when prosecuto-rial misconduct reaches the level of plain or obvious error — conduct the prosecutor should know is improper — the prosecution should bear the burden of demonstrating that its misconduct did not prejudice the defendant’s substantial rights. Although this is a departure from Griller in that Griller places the burden of the entire plain error doctrine on the defendant, 583 N.W.2d at 741, we conclude that prosecu-torial misconduct is the type of trial error that justifies a shift in the burden for determining whether the plain error affected the defendant’s substantial rights.

The overarching concern regarding prosecutorial misconduct, expressed in many of our cases, is that such misconduct may deny the defendant’s right to a fair trial. See, e.g., State v. Powers, 654 N.W.2d 667, 678 (Minn.2003); State v. Wahlberg, 296 N.W.2d 408, 420 (Minn.1980). Prosecutors have an affirmative obligation to ensure that a defendant receives a fair trial, no matter how strong the evidence of guilt. State v. Henderson, 620 N.W.2d 688, 701-02 (Minn.2001); State v. Sha, 292 Minn. 182, 185, 193 N.W.2d 829, 831 (1972). This is so because, as we have repeatedly said, a prosecutor “is a minister of justice whose obligation is to guard the rights of the accused as well as to enforce the rights of the public.” State v. Penkaty, 708 N.W.2d 185, 196 (Minn.2006) (citations omitted); accord State v. Salitros, 499 N.W.2d 815, 817 (Minn.1993). The role of an American prosecutor as a minister of justice is firmly established. See Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935) (government attorney is the representative “of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done”); ABA Standards for Criminal Justice: Prosecution Function & Defense Function, Standard 3-1.2(c) (3d ed. 1993) (“The duty of the prosecutor is to seek justice, not merely to convict.”); Nat’l Dist. Attys. Ass’n, National Prosecution Standards, Standard 1.1 (2d ed. 1991) (“The primary responsibility of prosecution is to see that justice is accomplished.”). Thus, a prosecutor may not seek a conviction at any price. State v. Porter, 526 N.W.2d 359, 362-63 (Minn.1995); Salitros, 499 N.W.2d at 817.

We have identified numerous kinds of trial conduct that are improper for prosecutors. Some examples are: eliciting inadmissible evidence, State v. Harris, 521 N.W.2d 348, 353-54 (Minn.1994); alluding in argument to the defendant’s exercise of the right not to testify, State v. Whittaker, 568 N.W.2d 440, 450-51 (Minn.1997), or to the defendant’s failure to call witnesses, State v. Parker, 417 N.W.2d 643, 647 (Minn.1988); misstating the presumption of innocence, Salitros, 499 N.W.2d at 818, or the burden of proof, State v. Coleman, 373 N.W.2d 777, 782 (Minn.1985); interjecting the prosecutor’s personal opinion about the veracity of witnesses, State v. Ture, 353 N.W.2d 502, 516 (Minn.1984); inflaming the passions and prejudices of the jury, Porter, 526 N.W.2d at 363-64; disparaging the defendant’s defense to the charges, State v. Griese, 565 N.W.2d 419, 427 (Minn.1997); and injecting race into the case when race is not relevant, Cabrera, 700 N.W.2d at 475. Many of these prohibitions also appear in standards of conduct the American Bar Association has established for prosecutors and defense counsel alike. See ABA Standards for Criminal Justice, Prosecution Function & Defense Function, Standards 3-5.5 to 3-5.9 (prosecution), 4-7.4 to 4-7.8 (defense). We expect that prosecutors, as well as defense counsel, are aware of our case law proscribing particular conduct as well as the standards of conduct prescribed by the ABA. Nevertheless, we continue to see cases in which prosecutors persist in clearly proscribed conduct. See, e.g., State v. Mayhorn, 720 N.W.2d 776 (Minn.2006) (prosecutor expressed personal opinion about defendant’s guilt, commented on defendant’s failure to call witness and disparaged defendant’s alibi defense, among other improprieties).

Courts have struggled to effectively respond to the problems presented when prosecutors engage in off-limits conduct. The Illinois Supreme Court has referred to prosecutorial misconduct as “a problem that courts across the country have, for the most part, been unable or unwilling to control.” People v. Johnson, 208 Ill.2d 53, 281 Ill.Dec. 1, 803 N.E.2d 405, 412 (2003). A Florida intermediate appellate court described a “veritable torrent of cases” involving significant prosecutorial improprieties, noted that “this pattern of conduct cannot be tolerated,” and expressed frustration that the court’s “prior efforts to eliminate the practice have proven entirely inadequate.” Thornton v. State, 852 So.2d 911, 914-15 (Fla.Dist.Ct.App.2003) (citation omitted). The problem is not new: 60 years ago Judge Jerome Frank of the Second Circuit Court of Appeals expressed his frustration that denouncing serious misconduct but not reversing shows an “attitude of helpless piety” and breeds a cynical attitude toward the judiciary. United States v. Antonelli Fireworks Co., 155 F.2d 631, 661 (2d Cir.1946) (Frank, J., dissenting).

Our past attempts to respond to the problem of prosecutorial misconduct have ranged from the two-tiered Caron approach, with an enhanced harmless-error standard for so-called “serious” misconduct, to reversing prophylactically in egregious cases without inquiring into prejudice, in the exercise of our supervisory powers. See Salitros, 499 N.W.2d at 820; Caron, 300 Minn. at 127-28, 218 N.W.2d at 200. As stated above, since Griller was decided, we have generally applied plain-error analysis when reviewing claims of unobjected-to prosecutorial misconduct. See, e.g., MacLennan, 702 N.W.2d at 235.

Ramey would have us address the problem of recurrent prosecutorial misconduct by returning to the pr e-Griller approach of considering the defendant’s failure to object simply as a factor weighing against granting a new trial, and scrapping the Caron two-tier test in favor of a single, harmless-beyond-a-reasonable-doubt standard when assessing prejudice. The state asks us to continue to apply Griller plain-error analysis in cases of unobjected-to prosecutorial misconduct, with the burden on the defendant to demonstrate prejudice.

Neither of these suggested approaches has adequately addressed the issue. The pr e-Griller approach did not curtail improper conduct by prosecutors and the difficulty with applying the higher harmless-error standard in all cases would make “less serious” misconduct subject to less regulation by the appellate courts. Similarly, placing the burden on the defendant to show prejudice has not been adequate to deter prosecutorial misconduct in the eight years since Griller was decided. Therefore, we conclude that the burden should be on the prosecution to show lack of prejudice before we will affirm a conviction.

As stated previously, under Chiller, before an appellate court reviews unobjected-to trial error, there must be (1) error, (2) that is plain, and (3) affects substantial rights. Griller, 583 N.W.2d at 740. If these three prongs are satisfied, the court then assesses whether the error should be addressed to ensure fairness and the integrity of the judicial proceedings. Id. In Griller, we held that the defendant bears the burden of persuasion on the third prong of the test. Id. at 741 (citing United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)). We also stated that we consider this to be a “heavy burden.” Id.

Under the approach we now adopt, the burden would continue to be on the nonobjecting defendant to demonstrate both that error occurred and that the error was plain. This is as it should be because the defendant did not seek any corrective action on the part of the trial judge. “An error is plain if it was ‘clear’ or ‘obvious.’ ” State v. Strommen, 648 N.W.2d 681, 688 (Minn.2002) (citing Olano, 507 U.S. at 734, 113 S.Ct. 1770). Usually this is shown if the error contravenes case law, a rule, or a standard of conduct. Under this approach, when the defendant demonstrates that the prosecutor’s conduct constitutes an error that is plain, the burden would then shift to the state to demonstrate lack of prejudice; that is, the misconduct did not affect substantial rights. Griller, 583 N.W.2d at 741; Minn. R.Crim. P. 31.02. Employing our recent formulation of the prejudice standard in the prosecutorial misconduct context, the state would need to show that there is no “reasonable likelihood that the absence of the misconduct in question ‘would have had a significant effect on the verdict of the jury.’ ” MacLennan, 702 N.W.2d at 236 (citations omitted).

Our new approach of shifting the burden to the prosecution to show lack of prejudice in prosecutorial misconduct cases best serves policy concerns. The benefits of this approach are to better allow substantive review of conduct that prosecutors should know is clearly forbidden and to put the onus on the prosecution to defend against the prejudicial effect of its own misconduct. A further benefit of this approach is to provide more scrutinizing review by the court of appeals, where a large majority of prosecutorial misconduct appeals are decided.

Placing the burden on the prosecution to show lack of prejudice is not a novel approach. In Chapman v. California, the case in which the United States Supreme Court held that constitutional error can be harmless, the Court placed the burden on the government, stating:

Certainly error, constitutional error * * * casts on someone other than the person prejudiced by it a burden to show that it was harmless. It is for that reason that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.

386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Court “requir[ed] the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. Chapman was itself a prosecutorial misconduct case, involving impermissible comment on the defendant’s election not to testify at trial. Id. at 24-25, 87 S.Ct. 824. Similarly, at least two states, including Wisconsin, follow Chapman and continue to place the burden on the prosecution to show lack of prejudice. See Wilson v. State, 874 So.2d 1155, 1159 (Ala.Crim.App.2003) (holding state must establish that prosecutorial misconduct did not injuriously affect defendant’s substantial rights); State v. King, 205 Wis.2d 81, 555 N.W.2d 189, 194 (1996) (holding that under state’s plain-error rule, burden is on prosecution to prove that plain error is harmless).

Reducing the incidence of prosecutorial misconduct is a shared obligation of prosecutors, who need to be aware of and comply with prescribed standards of conduct; defense counsel, who should seek corrective action by the trial court when misconduct occurs; and trial courts that, we have stated, “have a duty to intervene and caution the prosecutor, even in the absence of objection, in appropriate circumstances.” State v. Glaze, 452 N.W.2d 655, 662 (Minn.1990). When there is no objection and the misconduct is plain, placing the burden on the prosecution to show lack of prejudice will allow for more effective appellate regulation of impermissible practices. Appellate courts should “not hesitate in a suitable case to grant relief in the form of a new trial.” Id. For our part, we retain the authority in the appropriate case to reverse under our supervisory powers, without regard to whether the defendant was prejudiced. Therefore, we reverse and remand to the court of appeals to determine whether the prosecutor’s conduct constituted plain error and to place the burden on the prosecution to show lack of prejudice.

Reversed and remanded.

ANDERSON, PAUL H., Justice

(concurring).

I concur in the opinion of the majority. I write separately to address the majority’s conclusion that, when we conduct a plain error review of unobjected-to prose-cutorial misconduct, the state, rather than the defendant, should bear the burden of persuasion on the third prong of the plain error doctrine.

Without a doubt, the majority’s holding represents a sharp and radical departure — a 180° turn — from our court’s and the United States Supreme Court’s jurisprudence as to the burden of persuasion on the third prong of the plain error test. See State v. Griller, 583 N.W.2d 736, 741 (Minn.1998) (stating that “[t]he defendant bears the burden of persuasion on this third prong”); United States v. Olano, 507 U.S. 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (stating that, under the federal plain error rule — Rule 52(b) — “[i]t is the defendant^] rather than the Government^] who bears the burden of persuasion with respect to [the third prong].”). While I acknowledge that the rationale for the majority’s decision to shift the burden of proof to the state on this prong has some merit, I am concerned with our court making such a sharp departure from precedent when the concept of shifting the burden of persuasion was not fully developed in the parties’ briefs or orally argued before our court, and does not have well-developed case law to support it. The majority acknowledges the former point when it states that Ramey argues for a pre-Griller harmless-beyond-a-reasonable-doubt analysis and the state advocates that we adhere to our Griller plain-error analysis.

In essence, this case is about how we as an appellate court go about doing our business. I would much prefer an approach whereby, in the context of this issue in this case, we adhere to our well-established precedent, but in the majority or by concurrence or dissent signal that we invite arguments in the future that specifically address this issue. Under such circumstances, we would have the benefit of well-developed arguments, could properly evaluate the merits of each side’s argument, and could then decide this issue. It is for this reason that I believe it is imprudent for us to adopt the burden-shifting change adopted by the majority. Based upon the facts and arguments presented here, I conclude that, for now, it is best that we adhere to our well-established precedent and the guidance provided by the United States Supreme Court.

GILDEA, Justice

(concurring).

I agree with the majority that plain error analysis applies when reviewing unobjected-to prosecutorial misconduct and that the third prong of the plain error test is the appropriate standard for determining prejudice. I write separately because I believe that the majority’s new plain error formulation, shifting the burden to the state to show that prosecutorial misconduct did not affect the defendant’s substantial rights, ignores the doctrine of stare decisis and creates unprecedented new law without compelling reason. As we have done in our prior cases, I would continue to place the burden on the defendant to show that any error that was plain affected substantial rights.

Fifty years ago we emphasized the importance of the doctrine of stare decisis to the rule of law. See State ex rel. Foster v. Naftalin, 246 Minn. 181, 205, 74 N.W.2d 249, 264 (1956). We said:

Government by law instead of by man, which is the main bulwark to our democratic form of government, demands a decent respect for the rule of stare deci-sis in order that citizens of this state will be assured that decisions of the court are good for more than “one trip and one day only.”

Id.; see also Zettler v. Ventura, 649 N.W.2d 846, 852 (Minn.2002) (Anderson, R.A., J., dissenting) (quoting Foster and noting that “[w]hile the doctrine of stare decisis is not inflexible, it is not to be abandoned on a whim; its purpose is to provide stability in the law”). We have continued to adhere to this view and have noted that “[w]e are extremely reluctant to overrule our precedent.” State v. Lee, 706 N.W.2d 491, 494 (Minn.2005). Because of the importance of stare decisis, “we have required a ‘compelling reason’” to overrule our precedent. Id. (quoting Oanes v. Allstate Ins. Co., 617 N.W.2d 401, 406 (Minn.2000)). The majority’s decision abandons our doctrine of stare decisis, creates instability in the law, rewrites our court rule, and overrules recent cases, all without compelling reason to do so.

Under the majority’s new approach, the defendant bears the burden of proof under the first two prongs of the plain error analysis, but the state would bear the burden under the third prong. This is contradictory to our court rule and our case law, which has placed the burden on the defendant to satisfy each element of the plain error analysis before an appellate court will address unpreserved error.

The result reached by the majority is at odds with Minnesota Rule of Criminal Procedure 31.02. In United States v. Olano, which we relied on as the basis for our plain error analysis, the U.S. Supreme Court explained that the basis for placing the burden on the defendant in the plain error analysis is the language of the rule itself. 507 U.S. 725, 734-35, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) (“This burden shifting is dictated by a subtle but important difference in language between the two parts of Rule 52: While Rule 52(a) precludes error correction only if the error ‘does not affect substantial rights,’ Rule 52(b) authorizes no remedy unless the error does *affec[t] substantial rights.’ ”). Our Rule 31.02 contains the identical language and indeed our rule is based on the federal rule. See Minn. R.Crim. P. 31 emt.-1990 (“Rule 31.01 (Harmless Error) comes from F.R. Crim P. 52(a). Rule 31.02 (Plain Error) comes from F.R.Crim. P. 52(b).”). Because Rule 31.02 permits an appellate court to consider unpreserved error only if the error does affect substantial rights, it is logical to place the burden of persuasion on the defendant to show the error did affect substantial rights — and not on the state to prove the negative. This is the approach we have taken in our cases since the development of the plain error doctrine in Minnesota.

In State v. Griller, our controlling plain error case, we interpreted the plain error analysis in accordance with the U.S. Supreme Court’s jurisprudence:

The United States Supreme Court has established a three-prong test for plain error, requiring that before an appellate court reviews an unobjected-to error, there must be (1) error; (2) that is plain; and (3) the error must affect substantial rights. If these three prongs are met, the appellate court then assesses whether it should address the error to ensure fairness and the integrity of the judicial proceedings.

583 N.W.2d 736, 741 (Minn.1998) (citing Johnson v. United States, 520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997)). Citing Olano, we went on to specifically address the prejudice prong of the plain error analysis:

The third prong, requiring that the error affect substantial rights, is satisfied if the error was prejudicial and affected the outcome of the case. The defendant bears the burden of persuasion on this third prong. We consider this to be a heavy burden.

Griller, 583 N.W.2d at 741 (citing Olano, 507 U.S. at 734, 113 S.Ct. 1770).

Although Griller did not specifically address unobjected-to prosecutorial misconduct, we have cited Griller for the proposition that before an appellate court will consider a defendant’s claim of unobjected-to prosecutorial misconduct, the defendant bears the burden of proof under all prongs of the plain error analysis' — -including the prejudice prong. See State v. MacLennan, 702 N.W.2d 219, 236 (Minn.2005) (“In order to show that the error has affected his substantial rights, the defendant must show that the error was prejudicial and that it affected the outcome of the case.”) (emphasis added); State v. Morton, 701 N.W.2d 225, 234 (Minn.2005) (“Under the plain error standard, a defendant may obtain relief upon demonstrating that: (1) there was error, (2) that is plain, and (3) the error affected the defendant’s substantial rights.”) (emphasis added).

Taken together, these cases form strong precedent for the proposition that the defendant, and not the state, bears the burden to show that unobjected-to prosecuto-rial misconduct affected the defendant’s substantial rights. The majority’s new rule overturns this precedent and creates a new plain error analysis applicable only to unobjected-to prosecutorial misconduct. Under the majority’s new rule, this court will address unpreserved error if it (1) is error, (2) that is plain, and (3) the state cannot show that the error did not affect the defendant’s substantial rights. The burden shift amounts to a presumption that the error affected substantial rights— leaving the state to defend itself against that presumption when it was the defendant who failed to preserve the error properly during trial. This improper shift in burden is inconsistent with our precedent on prosecutorial misconduct, and it ignores the concerns we expressed in State v. Ray, that defendants might deliberately pass on an objection at trial. 659 N.W.2d 736, 747 n. 4 (Minn.2003).

In departing from our established precedent, the majority cites authority from other jurisdictions. But this authority does not provide a compelling reason for us to depart from our precedent. The majority relies on eases from other jurisdictions that place the burden of proof on the state in the context of a harmless error analysis. See Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Wilson v. State, 874 So.2d 1155, 1159 (Ala.Crim.App.2003). These cases are inappo-site within the context of the plain error analysis.

The majority also cites a Wisconsin case, which appears to use a harmless error analysis “in determining whether to invoke the plain error doctrine,” and places the burden on the state to show that the error was harmless. State v. King, 205 Wis.2d 81, 555 N.W.2d 189, 194 (1996) (“[WJhen constitutional errors are involved and plain error is alleged, the state has the burden to show that the error was harmless beyond a reasonable doubt.”). That ease explicitly recognizes that its holding is inconsistent with the relevant U.S. Supreme Court authority on the issue. Id. (“This conclusion is inconsistent with Olano, in which the Supreme Court concluded that under the plain error doctrine, ‘It is the defendant rather than the Government who bears the burden of persuasion with respect to prejudice.’ ”). This same authority that Wisconsin rejects is the very foundation for our formulation of the plain error doctrine in Minnesota. See Griller, 583 N.W.2d at 741 (citing Olano, 507 U.S. at 734, 113 S.Ct. 1770).

The majority arrives at its conclusion that we must overrule our precedent because it says that “placing the burden on the defendant to show prejudice has not been adequate to deter prosecutorial misconduct in the eight years since Griller was decided.” Just how placing the burden on the prosecution will deter misconduct the majority does not say. In any event, the majority’s speculative hoped-for outcome does not constitute a compelling reason to depart from precedent. Cf. Oanes, 617 N.W.2d at 405 (finding “contradictory line of cases” from Minnesota, which resulted in claims being lost before those claims could even be brought, to be a compelling reason for overruling prior precedent).

The majority suggests that public policy concerns regarding prosecutorial misconduct provide a compelling reason to depart from our established precedent. I agree with the majority that prosecutorial misconduct is a serious issue. Because the issue is a form of professional misconduct, I believe the problem of prosecutorial misconduct is better dealt with through the efforts of the Office of Lawyers Professional Responsibility than through a rejection of our precedent. See, e.g., Minn. R. Prof. Conduct 3.8 cmt. (“Applicable law may require other measures by the prosecutor and knowing disregard of those obligations or a systematic abuse of prosecuto-rial discretion could constitute a violation of Rule 8.4.”).

Finally, the majority claims that its new burden-shifting rule will serve policy concerns by “better allow[ing] substantive review of conduct that prosecutors should know is clearly forbidden and [putting] the onus on the prosecution to defend against the prejudicial effect of its own misconduct.” It is unclear to me why a shift in burden would better allow the substantive review of prosecutorial misconduct. This court has a strong history of providing substantive review of claims of prosecuto-rial misconduct, even with the burden to show prejudice placed on the defendant. In short, the policy concerns the majority identifies do not provide a compelling reason to depart from our precedent.

I would retain our original formulation for plain error in cases of unobjected-to prosecutorial misconduct.

ANDERSON, G. BARRY, Justice

(concurring).

I join in the concurrence of Justice Gil-dea.

      . In the court of appeals, Ramey raised as error the following comments, which he claimed improperly interjected the state’s opinion and improperly vouched for witnesses:
      (1) “The State charged Mr. Ramey, entered this trial believing he’s guilty.”
      (2) "That would be a big coincidence if it wasn’t the defendant, and the State believes that would be too big of a coincidence. The State believes that’s too big of a bridge to jump.”
      (3) “The State believes her testimony is credible. The officer[s’] testimony is credible and you should believe what they told you.”
      (4) "We suggest there [is] no evidence that you can find that [S.S.] was somehow affected, that she couldn't have — couldn’t have accurately identified Ramey’s voice.”

      . The defendant in Caron had not objected to the alleged misconduct. 300 Minn. at 127, 218 N.W.2d at 200.

      . We have also held that where defense counsel does not object to improper prosecutorial argument and instead chooses to respond in the defense summation, the defendant forfeits consideration of the issue on appeal. State v. Whisonant, 331 N.W.2d 766, 769 (Minn.1983).

      . Our decision today leads us to conclude that the Caron two-tiered standard is no longer applicable to cases involving unobjected-to prosecutorial misconduct. Although Caron addressed an instance of unobjected-to prose-cutorial misconduct, the concept of plain error was not embraced in Minnesota until after Caron was decided. We leave for another day the question of whether the Caron two-tiered approach should continue to apply to cases involving objected-to prosecutorial misconduct.

      . We cited these standards in Salitros and noted that just as a prosecutor is a minister of justice, defense counsel "is neither a mouthpiece nor an ordinary agent, but a professional advocate governed by rules of professional ethics and decorum.” 499 N.W.2d at 817. In Salitros we also noted that because only convicted defendants can ordinarily appeal following trial, our opinions tend to focus on prosecutorial misconduct but that we are aware that the problem of trial misconduct is not limited to the prosecution. Id.

      . The court of appeals does not exercise supervisory powers that are reserved to this court. State v. Gilmartin, 535 N.W.2d 650, 653 (Minn.App.1995).

      . In essence, the majority's result rewrites Rule 31.02. In my view, we should not rewrite our court rules in specific cases, as the majority does here, especially when the issue was not briefed. We have a process for revision of court rules, and that process should be followed before rules are changed.