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Minnesota Supreme Court Carves Huge Hole in the Right to Remain Silent

The Minnesota Supreme Court today issued a decision creating an odd new hole in the right to remain silent.  Most Americans know through movies, TV dramas and Congressional hearings, that a suspect has a right to remain silent.  The Fifth Amendment to the U.S. Constitution says that no person “shall be compelled in any criminal case to be a witness against himself”

In State v. Borg, the court today found a strange exception to the idea that invoking your right to silence and counsel could not be used against you.  The court allowed testimony from the investigating officer, who testified that he called Mr. Borg by phone, and was told that he had a lawyer and would not be submitting to a police interrogation.  Later, the officer apparently sent Mr. Borg a letter saying:

I would like to speak with you regarding an investigation that I am conducting. When I spoke with you briefly in May, 2004, you indicated that you had hired an attorney to represent you.
Please have your attorney contact me as soon as possible to arrange an interview appointment. Thank you very much.

Mr. Borg did not respond, there was no evidence when the letter was mailed, and the trial court allowed the testimony of the officer saying that Borg did not set up a meeting.  The Minnesota Court of Appeals last year reversed the conviction, finding the testimony and the government’s argument that remaining silent meant guilt to be not harmless error and worthy of reversal.

Defendants who plead guilty in Minnesota are required to acknowledge the following statement:

  1. That I could testify at trial if I wanted to but I could not be forced to testify.
  2. That if I decided not to testify neither the prosecutor nor the judge could comment on my failure to testify.

The majority has moved into a strange new area for criminal defendants.  You cannot be compelled to testify against yourself.  You cannot be compelled to talk to the police, but, if you do not, the government may now argue that your failure to submit to an interrogation, though you are no obligation to do so, means that you must be guilty. In this case, the government argued in closing:

When law enforcement contacted him by phone and by mail, [Borg] didn’t say “Hey, I don’t understand what’s goin’ on here with . . . these questions.  This was a consensual situation.”  He never said that.  He never—when he found out later that day what the report was from [M.W.], he never called the police to say, “Hey, woah, I wanna make sure everybody’s clear on this, this is a consensual situation.”  . . .  He did none of those things.  And you get to ask yourself based on your common sense and experience whether those are the actions of somebody who believes that they have done nothing wrong.

So, though you cannot be forced to testify, and no one can comment on your failure to testify,  and you cannot be forced to submit to an interrogation, the government may now argue that your failure to submit to an interrogation is evidence of guilt.   The court distinguished this as pre-counseled, pre-arrest, and pre-Miranda silence.   It is hard to see the point of the distinction.  If you have a Constitutional right to remain silent, and are wise enough to exercise it before you are explicitly told that you have a right to silence by your lawyer, or the officer, why is that evidence of guilt, and not evidence that you, as a citizen, understand your Constitutional rights? Apparently, you now, in Minnesota, have  a right to remain silent, but if you exercise your right to remain silent before someone explicitly tells you about it, then your silence becomes evidence of your guilt.

As the Court of Appeals found in it’s opinion:

We see no reason why Dunkel should be distinguished on the basis that appellant’s silence was pre-counseled.   Such a distinction would vitiate a criminal defendant’s constitutional guarantee of the right to remain silent.   We therefore conclude that the district court erred in permitting the officer to testify about appellant’s pre-counseled, pre-arrest, and pre-Miranda silence in the state’s case-in-chief.

The dissent at the Supreme Court, authored by Justice Meyer pointed out:

Comment on a defendant’s silence after he has been read the Miranda warnings violates due process because it would be fundamentally unfair to tell a suspect that he has the right to remain silent then penalize him for exercising that right….

The question presented in this case is one that neither our court nor the Supreme Court has addressed: whether the Fifth Amendment permits the State to introduce evidence in its case-in-chief of a defendant’s pre-arrest, pre-Miranda silence in response to government questioning.  Until now, the universal answer to that question has been “no.”  Every other state high court and federal appellate court faced with this issue has held that the Fifth Amendment prohibits such use.  The United States Courts of Appeals for the First, Sixth, Seventh, and Tenth Circuit and high courts in Idaho, Maryland, Massachusetts, New Hampshire, Nebraska, Ohio, Washington, Wisconsin, and Wyoming have all held that the introduction in the prosecution’s case-in-chief of a defendant’s pre-arrest silence in response to government questioning violates the Fifth Amendment. I would join these jurisdictions and adopt the rule of law that the Fifth Amendment’s protection against self-incrimination prohibits the State from introducing in its case-in-chief evidence of a defendant’s silence in response to government questioning.


O brave new world, That has such people in’t!    The Tempest, W. Shakespeare Act V, Scene 1.

John L. Fossum, is an attorney with the Fossum Law Office, LLC, and has offices in Northfield, MN and Bloomington, MN.  Fossum Law Office, LLC handles criminal defense, appeals, personal injury, civil litigation and business law.  If you have a legal problem in Minneapolis, St. Paul, Bloomington, Burnsville, Hastings, Shakopee, Faribault, Chaska, Waseca, Owatonna, or elsewhere in the Twin Cities or Southeastern Minnesota, contact Fossum Law Office, LLC for assistance.

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