This week the Minnesota Court of Appeals took the Borg case, allowing the use of pre-arrest, pre-Miranda, and pre-counsel silence as evidence against an accused one step further, and decided that it was ok for the government to use a defendant’s post arrest silence as evidence of guilt.
The case, State v. Johnson, rests on an odd set of facts, the court recounted them this way:
Four men robbed B.A. in downtown Minneapolis on February 8, 2010, near bar-closing time. B.A. testified that after leaving a bar, he walked down Second Avenue and turned on Fourth Street, towards First Avenue. As he walked past Pizza Luce, seven men approached him. Johnson and three others surrounded B.A.; punched him twice in the face; and stole his cell phone, wallet, and money. The robbery took less than one minute and left B.A. with cuts above his eye and inside his mouth.
After the robbery, B.A. walked in the opposite direction of his assailants and found an off-duty police officer, Officer Daniel Lysholm, inside a restaurant. B.A. banged on the window of the restaurant and said, “I got jumped by those guys.” Lysholm exited the restaurant, and B.A. pointed toward the men who robbed him. Less than 20 seconds elapsed between the robbery and the time that B.A. pointed out the men toLysholm. The men were not near any other persons when Lysholm saw them. Lysholm radioed for assistance and provided a description of the men’s jackets. Two police officers in a nearby squad car heard the radio dispatch, saw the men, immediately approached them, and arrested them. B.A. and Lysholm never lost sight of the men from the time B.A. approached Lysholm until the time of the men’s arrest.
Officers identified the men as appellant Kenneth Johnson, codefendant Corey Maull, Giorgio Tyler, and Darail Murphy. During the arrest, an officer noticed a pile of identification cards and credit cards lying on the ground between Johnson and Murphy. B.A. approached and identified the cards as his. Then without prompting by the officers,B.A. said to Johnson and Murphy, who were standing near the rear of a squad car, “Why did you beat me? Why did you take my things?” Neither Johnson nor Murphy responded.
The appeal covered a number of issues, including a speedy trial violation. But the non-response was admitted at trial for the jury to consider. The court reasoned that the non-response was reasonable for the jury to consider, that although you have a right to silence, a non-response to a question not asked by a government official, was not a violation of the Fifth Amendment which says that no person “shall be compelled to be a witness against himself.” The court borrowed language from the Borg case:
The protection against compelled self-incrimination guarantees the right of a defendant to remain silent during his criminal trial by prohibiting the State from forcing a defendant to testify against himself. The Fifth Amendment also prohibits the State from commenting on the silence of a defendant who asserts his right not to testify at his trial. . . . [A]llowing the State to comment on a defendant’s decision not to testify unfairly penalizes the defendant for exercising a constitutional privilege. Once a defendant elects to testify in his defense, however, he casts aside his cloak of silence and may be impeached by evidence that he remained silent before arrest without the impeachment running afoul of the Fifth Amendment.
The court went on to conclude: “the state did not compel Johnson “to speak at the time of his silence.” Id. Johnson remained silent in response to B.A.’s questions, questions not posed by the government. Although Johnson had been arrested, he was under no government-imposed compulsion to speak at the time of his silence. We therefore conclude that Johnson’s silence did not implicate the Fifth Amendment.”
In other words, you have a right to remain silent in the face of police questioning, if you have been arrested and advised of your right to remain silent. Otherwise, exercising the right to silence may be used as evidence of your guilt. If you are charged, or accused of a crime, get a lawyer, right away.
Fossum Law Office, LLC has offices in Northfield and Bloomington, Minnesota. John L. Fossum has extensive experience in state and federal courts in Minnesota and can assist people with legal problems in Minneapolis, St. Paul, Bloomington, Burnsville, Shakopee, Hastings, Faribault, Owatonna, Waseca, Chaska, Rochester, Cannon Falls, Red Wing or anywhere else in the Twin Cities or South Eastern Minnesota. If you are seeking assistance with a criminal case, appeal, civil litigation or other legal problem, contact Fossum Law Office, LLC for assistance. John L. Fossum has experience handling the most serious criminal cases, including drug crimes, sex crimes, murder, attempted murder, and other violent and non-violent crimes. If you have been charged with or accused of a crime, you need a lawyer now.