Attorney John L. Fossum

Attorney John L. Fossum, of the Fossum Law Office, LLC has been named a Top 100 Trial Lawyer by the National Trial Lawyers.

According to their website:

The National Trial Lawyers: Top 100 an invitation-only organization composed of the premier trial lawyers from each state in the nation who meet stringent qualifications as civil plaintiff and/or criminal defense trial lawyers. Selection is based on a thorough multi-phase process which includes peer nominations combined with third-party research. Membership is extended solely to the select few of the most qualified attorneys from each state who demonstrate superior qualifications of leadership, reputation, influence, stature and public profile.

National Trial Lawyers have posted a profile of Mr. Fossum here.  Mr. Fossum is also a Board Certified Criminal Law Specialist by the Minnesota State Bar Association.

Fossum Law Office, LLC has offices in Northfield and Bloomington, Minnesota.  John L. Fossum is licensed to practice in the State and Federal Courts of Minnesota, the Eighth Circuit U.S. Court of Appeals, the United States Supreme Court, the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Tribunal for Lebanon.

If you have a criminal or civil case in Minneapolis, St. Paul, Bloomington, Shakopee, Hastings, Faribault, Waseca, Owatonna, Rochester, or elsewhere in Minnesota, contact Fossum Law Office, LLC for representation.  John Fossum has handled cases in Ramsey, Hennepin, Washington, Anoka, Dakota, Scott, Olmsted, Rice, Steele, Waseca, Mower, Freeborn and other counties in Minnesota.

Judge Tunheim will discuss his time in Kosovo and the international tribunals impacts on Kosovo.  Mr. Docherty will describe his time working as a prosecutor at the International Criminal Tribunal for the former Yugoslavia.

More details will follow when they become available, it is expected there will be a panel discussion, question and answer period following the presentations. The program will be sponsored by the Criminal Law Section of the Minnesota State Bar Association.

Nations which have ratified the United Nations Convention Against Torture in dark green, those which have signed but not ratified in light green, those which have not signed in gray.e,  bans it under any circumstances or rationalizations, requires the member states to make torture a crime, prohibits the transfer of persons to  countries where they might be tortured, and creates a right to compensation by the person who has been tortured:

Article 14

1. Each State Party shall ensure in its legal system that the victim of an act of torture obtains redress and has an enforceable right to fair and adequate compensation, including the means for as full rehabilitation as possible. In the event of the death of the victim as a result of an act of torture, his dependants shall be entitled to compensation.

2. Nothing in this article shall affect any right of the victim or other persons to compensation which may exist under national law.

The United States signed the treaty in April, 1988, ratified it on 21, October 1994.  Common Article III of the Geneva Conventions also prohibits torture,  the United States signed the Geneva Conventions in 1949 and ratified them in 1955.

Last week the Senate Intelligence Committee approved a still classified, 6,000 page  report about the conduct of torture by the CIA.  It is not clear when, or if, this information will be available to the public.

In 2003, a German citizen, Khaled al-Masri, was pulled off a bus in Macedonia because he was confused with an Al Qaeda operative with a similar name. Al-Masri was tortured, then placed in U.S. custody and flown to Afghanistan and tortured for an additional four months.  Eventually he was released in Albania.  Al-Masri sued, and last week won a judgment of approximately $78,000 in the European Court of Human Rights in Strasbourg.

Last month, the United States Court of Appeal for the Seventh Circuit declined to create a cause of action for Donald Vance and Nathan Ertel,  and found they could not sue Secretary of Defense Donald Rumsfeld, or the people who did torture them. Vance and Ertel were contractors in Iraq for a company called Shield,  the court opinion offers this state of facts:

Vance came to suspect that Shield was supplying weapons to groups opposed to the United States. He reported his observations to the FBI. Ertel furnished some of the information that Vance relayed.
Persons who Vance and Ertel suspected of gun-running retaliated by accusing Vance and Ertel of being arms dealers themselves. Military personnel arrested them in mid-April 2006.

According to the complaint, plaintiffs were held in solitary confinement and denied access to counsel. Their
interrogators used “threats of violence and actual violence, sleep deprivation and alteration, extremes of
temperature, extremes of sound, light manipulation, threats of indefinite detention, denial of food, denial of
water, denial of needed medical care, yelling, prolonged solitary confinement, incommunicado detention, falsified allegations and other psychologically-disruptive and injurious techniques.” Vance and Ertel were provisionally classified as “security internees” and called before a Detainee Status Board, but they were not
allowed to present evidence—and the military officials running the proceedings refused to look at files on
their computers that Vance and Ertel say would have established their innocence of arms-dealing charges.
Nor did the Board contact the FBI, even though Vance and Ertel said that agents would verify their story.

The Board concluded on April 29, 2006, that Ertel should be released. Nonetheless he was held for another
18 days, during which interrogators continued to use harsh techniques. He was released on May 17, 2006.
Vance remained in solitary confinement until his release on July 20, 2006, and was subjected to sleep deprivation, prolonged exposure to cold, intolerably loud music, “hooding,” “walling” (placing a person’s heels against a wall and slamming his body backward into that wall), threats of violence, and other techniques that caused physical or mental pain. The Army Field Manual forbids several of these techniques, which it classifies as “physical torture,” “mental torture,” or “coercion.” See Army Field Manual: Intelligence Interrogation 1–8 (1992). Whether any of the techniques constitutes “torture” within the
meaning of 18 U.S.C. §2340(1), which makes torture by interrogators a crime, is a subject on which the parties’ briefs do not join issue, and which we therefore do not address.
The Detainee Status Board eventually concluded that both Vance and Ertel are innocent of the allegations
that had been made against them. Neither was charged with a crime

Vance and Ertel sued the interrogators, the Army and former Secretary of Defense Donald Rumsfeld for approving torture and overseeing its implementation.  The court decided that they had no right to sue.   The court offered this summary at the beginning of the opinion:

This appeal presents the question whether the federal judiciary should create a right of action for damages against soldiers (and others in the chain of command) who abusively interrogate or mistreat military prisoners, or fail to prevent improper detention and interrogation. Both other courts of appeals
that have resolved this question have given a negative answer. Lebron v. Rumsfeld, 670 F.3d 540 (4th Cir. 2012); Doe v. Rumsfeld, 683 F.3d 390 (D.C. Cir. 2012); Ali v. Rumsfeld, 649 F.3d 762 (D.C. Cir. 2011). Another circuit declined to create a damages remedy against intelligence officials who turned a suspected terrorist over to another nation for interrogation. Arar v. Ashcroft, 585 F.3d 559, 571–81 (2d Cir. 2009) (en banc). We agree with those decisions.

The court’s 83 page opinion was issued en banc, meaning it was reviewed and heard by the 11  judges in the Seventh Circuit to review a decision of a three judge panel.  The majority opinion was joined by seven judges, one judge wrote separately to concur in the judgment, though not all the reasoning, and three wrote in dissent to argue against the grant of immunity and argue that the case should be allowed to proceed.  The concurrence argued the plaintiffs had a cause of action, but missed the two year statute of limitations.  It is not clear the majority shared that view.

Judge Hamilton, writing in his dissent said:

Under the majority holding here, however, the same U.S. courts are closed to U.S. citizens who are victims
of torture by U.S. military personnel. The majority thus errs by attributing to Congress an intention to deny
U.S. civilians a right that Congress has expressly extended to the rest of the world. A victim of torture by
the Syrian military, for example, can sue in a U.S. court, but a U.S. citizen tortured by the U.S. military cannot. That conclusion should be deeply troubling, to put it mildly. We should not attribute that improbable view to Congress without a far more compelling basis than the majority offers

Torture is prohibited, and a crime.  It is not clear that there have been any significant prosecutions of those who tortured or authorized torture by either the Bush or Obama administrations.  The court determined that is not a basis for creating tort liability.  It is also not clear what remedy those tortured in U.S. custody have in U.S. courts.  They may seek a recovery under the Military Claims Act, 10 U.S.C. §2733. This is an application to an administrative body which has authority to award or deny relief with a limit of $100,000 and a two year statute of limitations.  The concurrence offered the following list of options:

• Bringing a civil action in federal or state court under the federal civil rights statute, 42 U.S.C.
§ 1983, directly against state or local officials for money damages or injunctive relief;
• Seeking damages for negligence of federal officials and for negligence and intentional torts of
federal law enforcement officers under the Federal Tort Claims Act, 22 U.S.C. § 2671 et seq.,
or of other state and municipal officials under comparable state statutes;
• Suing federal officials directly for damages under provisions of the U.S. Constitution for “constitutional
torts,” see Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971), and Davis v. Passman,
442 U.S. 228 (1979);

The list came from  United States Written Responses to Questions Asked by the Committee on Torture.  Apparently a tortured person may obtain relief only by suing, or filing an administrative claim, within a two year statute of limitations.

Loss & Restoration of Civil Rights:  All civil rights lost upon conviction of any felony; restored upon completion of sentence.

Firearms Privileges:  All firearms privileges lost upon conviction of any felony; restored upon completion of sentence except for crimes of violence; also restored by court or pardon.

Pardon Process:  Governor and high officials (attorney general, chief justice) act as pardon board, which is required to report to the legislature annually; for a “pardon extraordinary,” which restores all right and effectively nullifies a conviction, eligibility requires five crime-free years from final discharge for nonviolent crimes or 10 crime-free years for violent offenses; commissioner of corrections screens applications and decides which cases should be heard by the board; public hearing with notice to officials and victim and decision announced at end of hearing; pardon extraordinary does not expunge or seal conviction.  Pardons issued sparingly.

Judicial Expungement & Sealing:  Trial court has common law expungement authority and applies a balancing test; deferred prosecution and statutory expungement for minor drug offenses, non-conviction records.  Deferred sentencing for certain felony convictions which may be knocked down to misdemeanors following probation. Sealing for juveniles tried as adults after discharge; expungement of juvenile adjudications  depending on offense and case disposition.

Consideration of Conviction in Employment and Licensing:  To deny public employment or license based upon a conviction, there must be a “direct relationship” between occupation/license and conviction history, and the individual must not have shown “sufficient rehabilitation and present fitness to perform” the job duties or licensed occupation; rehabilitation is established by one year without an arrest after release or by successful completion of probation or parole.

That is a brief summary,12 pages of detailed information is available here.

The summary of federal information is:

Loss & Restoration of Civil Rights:  Vote depends on state law for both state and federal offenders.  Federal jury eligibility is lost upon conviction in state or federal court of a crime punishable by more than one year if a person’s “civil rights have not been restored.”  The Constitution does not prevent individuals from holding federal office after conviction of any crime.  Most states that do not restore the right to vote automatically give federal offenders access to their restoration procedures.  Jury eligibility is only restored upon an affirmative act, such as pardon or expungement.

Firearms Privileges:  Persons with convictions in any court of a crime punishable by imprisonment for a term exceeding one year are subject to the prohibition on possession of firearms under federal law; restoration by presidential pardon only for federal offenders, under 18 U.S.C. 921(a)(20) (defining triggering offense) or 18 U.S.C. 925 (ATF relief) for state offenders.  (Section 925 has not been funded since 1990.)

Pardon Process:  President decides; no reporting or notice requirement.  Eligibility five years after sentence or release from confinement.  No public hearing, paper record review, unlimited time.  Relieves all legal disabilities but does not expunge.  Pardons infrequent and irregular since 1990.

Judicial Expungement & Sealing:  No federal expungement, except where arrest or conviction invalid or subject to clerical error.  Deferred adjudication and expungement for first misdemeanor drug possession if under age 21 at time of offense.

Consideration of Conviction in Employment and Licensing:  Only limitation found in Title VII of the Civil Rights Act, barring discrimination on grounds of race, etc.

Sixteen pages of detail is available here.

These details show the importance of being properly represented if you have been charged with a state or federal crime.  John L. Fossum is an MSBA Board Certified Criminal Law Specialist, a long time member of the National Association of Criminal Defense Lawyers, and can assist you if you have been charged in state court in Minnesota, or in Federal Court. Fossum Law Office, LLC has offices in Northfield, and Bloomington, Minnesota and can assist you if you have legal problems in Minneapolis, St. Paul, Hastings, Shakopee, Faribault, Owatonna, Waseca, Rochester, Austin, Albert Lea, Anoka, Stillwater, or elsewhere in Minnesota, or in federal court. Fossum Law Office, LLC can assist you whether you have been charged with a felony, gross misdemeanor misdemeanor or juvenile offense.  Do not go to court alone. There is much more to a criminal conviction than the sentence.  If you have been charged with, or are being investigated for,  drug crimes, white collar crime, a violent or sex offense, or any crime, you need a criminal defense lawyer, now.  Contact Fossum Law Office, LLC today for a consultation.

When criminals use modern technological devices to
carry out criminal acts and to reduce the possibility of detection, they can hardly
complain when the police take advantage of the inherent characteristics of those very
devices to catch them. This is not a case in which the government secretly placed a
tracking device in someone’s car. The drug runners in this case used pay-as-you-go (and
thus presumably more difficult to trace) cell phones to communicate during the cross-country
shipment of drugs. Unfortunately for the drug runners, the phones were
trackable in a way they may not have suspected. The Constitution, however, does not
protect their erroneous expectations regarding the undetectability of their modern tools.

The court was referring, in part, to United States v. Jones, decided by the Supreme Court earlier this year, where the court found that placing a GPS tracking device on a car required a warrant and compliance with the details of the warrant.

The Fourth Amendment to the U.S. Constitution reads:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

When interpreting the Fourth Amendment the courts often discuss a zone of privacy or a reasonable expectation of privacy.  In this case, the court found that Skinner’s expectation of privacy in the GPS data was ill-placed, partially because he was not the registered owner of the phone, therefore he lacked standing to object to search, since it was not his private property.  In addition the agents following Skinner had obtained a warrant for the phone data, so their pinging of the phone to determine its location was not a violation of the Fourth Amendment, because a warrant had issued.  Federal Constitutional law has been that unless a warrant was issued because of fraud or misconduct by the police, once it issues, the police may search subject to the warrant, and the evidence may not be suppressed as the police were acting in “good faith” on the warrant.

The court went further, saying in a footnote that because it was “trackable,” no one has a reasonable expectation of privacy in the GPS data of a phone:

We do not mean to suggest that there was no reasonable expectation of privacy because
Skinner’s phone was used in the commission of a crime, or that the cell phone was illegally possessed.
On the contrary, an innocent actor would similarly lack a reasonable expectation of privacy in the inherent
external locatability of a tool that he or she bought.

Two of the three judges on the Sixth Circuit panel held there was no reasonable expectation of privacy in the GPS data that can be obtained from cell phones.  The third judge, in a dissent, argued that the data was entitled to privacy protection but that the defendant’s Constitutional right against unlawful search and seizure was not violated because the government had obtained a warrant.  In the Sixth U.S. Circuit at least, there is no right to privacy in data transmitted or available from your cell phone.

John L. Fossum is certified as criminal law specialist by the Minnesota State Bar Association and practices criminal defense in state and federal courts.  Fossum Law Office, LLC has offices in Northfield and Bloomington, Minnesota and represents people charged with crimes in Minneapolis, St. Paul, Hastings, Red Wing, Shakopee, Faribault, Waseca, Owatonna, Rochester,  Austin, Albert Lea, Mankato, Stillwater, Anoka,  and elsewhere in Minnesota. Contact Attorney John L. Fossum, at Fossum Law Office, LLC when you need help in a criminal case. Call for appointments at 507-645-0002 or 952-232-5865.

Attorney John L. Fossum, of the Fossum Law Office, LLC was named as  Certified Criminal Law Specialist by the Minnesota State Bar Association.   According the announcement from the MSBA:

The certified specialist designation is earned by leading attorneys who have completed a rigorous approval process, including an examination in the specialty area, peer review, and documented experience. Certified attorneys have demonstrated superior knowledge, skill and integrity in their specific field and can use the designation of specialist to advertise their credentials. This achievement has been earned by fewer than 3% of all licensed Minnesota attorneys. More information about Certified Legal Specialists is at http://www2.mnbar.org/certify.

With over 16,000 members, the MSBA is the state’s largest and most influential voluntary organization of attorneys, providing continuing legal education and public service opportunities for lawyers, and assistance to the legal system. The MSBA has been accredited as an independent professional organization for certifying attorneys as Criminal Law Specialists, Real Property Law Specialists, Civil Trial Law Specialists and Labor and Employment Law Specialists since 1989

John L. Fossum is admitted to practice in state and federal courts in Minnesota, the United States Court of Appeals for the Eighth Circuit, the United States Supreme Court, the International Criminal Court, the International Criminal Tribunal for the Former Yugoslavia, the International Criminal Tribunal for Rwanda, and the Special Tribunal for Lebanon.

Fossum Law Office, LLC has offices in Northfield and Bloomington and John L. Fossum has frequently handled cases in Rice, Steele, Waseca, Freeborn, Mower, Olmsted, Dakota, Scott, Goodhue, Ramsey, and Hennepin counties as well as elsewhere in Minnesota and in the Federal District Courts of Minnesota.  He also teaches criminal law, business law, and ethics as practitioner faculty for the University of Phoenix. If you have a case in Minneapolis, St. Paul, Hastings, Shakopee, Faribault, Owatonna, Rochester, Mankato, Albert Lea, Austin, Red Wing, or elsewhere in Minnesota or Federal Court in the United States, contact John L. Fossum, board certified criminal law specialist for help.

Photo of the International Criminal Court, The Hague, Netherlands

John L. Fossum, along with former U.S. Ambassdor Robert Flaten, United States District Court Judge John Tunheim, Assistant United States Attorney John Docherty and Professor Barbara Frey of the Human Rights Program at the Institute for Global Studies at the University of Minnesota.  Details of the program, registration information, and bios of the speakers are available here.

Topics include the genocide in Rwanda, the International Criminal Court in The Hague, Netherlands,

a History of International Criminal Law, the International Criminal Tribunal for the Former Yugoslavia and the International Criminal Tribunal for Rwanda.  Speakers will also be addressing war crimes, crimes against humanity and genocide generally.

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.

From:  A Man for All Seasons, by Robert Bolt.

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.