FIFTH AMENDMENT FOUL UP (RIGHT TO REMAIN SILENT)

I'm in shock. The Minnesota Supreme Court just put a HUGE dent in a criminal defendant's 5th Amendment rights. Up until now, if an out-of-custody defendant (or their attorney) chose not to participate in a police interview, it couldn't be mentioned at trial. The rationale was that a defendant has a 5th Amendment privilege against self-incrimination, and that their decision (usually based on a lawyer's advice) not to participate in a police interview is constitutionally protected and that invocation of their constitutional rights should not be used against them at trial.

In State v. Borg, the Minnesota Supreme Court turned the world of 5th Amendment jurisprudence on its head. The case involved an alleged sexual assault where the defendant contended the sexual encounter was in fact consensual. The significant issue on appeal involved a pre-charge, "investigation stage" letter sent by the investigating officer to the defendant asking the defendant's attorney contact the officer to arrange a meeting. Neither Mr. Borg nor his lawyer replied to the letter.

At trial, the prosecutor elicited testimony from the investigating officer that Mr. Borg did not reply to the letter, and-during closing-the prosecutor argued that Mr. Borg's silence was an "admission" of guilt, claiming that if Mr. Borg were actually innocent he would have replied to the letter and provided his version of the event! Apparently the jury bought it and convicted Mr. Borg of sexual assault.

Mr. Borg appealed the conviction, arguing that the Fifth and Fourteenth Amendments, as well as his right to due process, prohibited the prosecutor from using his silence against him during its case in chief. Constitutional law prevents the state from requiring a defendant to testify against himself at trial-and prevents a prosecutor from commenting on a defendant's constitutional right to remain silent during the trial-but if the defendant chooses to testify, then he opens himself to cross examination and impeachment. By introducing the testimonial evidence on direct examination the state forced the defendant to take the stand to explain, whereas had the defendant freely chosen to take the stand, the state could otherwise question the defendant about his silence in order to undermine his credibility. This is largely a due process argument.

Unfortunately, the Minnesota Supreme Court would not decide the case on due process grounds because Mr. Borg and his lawyer did not make a due process objection at the district court level. Relying instead on the Fifth/Fourteenth Amendments, the Minnesota Supreme Court concluded that the constitution did not bar the testimony in Mr. Borg's case because the Fifth/Fourteenth Amendments apply only to the decision to testify at trial, not to a defendant's silence before he's charged and while he's out of police custody. It adopted the legal analysis from a 1980 concurring opinion from a U.S. Supreme Court decision, Jenkins v. Anderson. Jenkins v. Anderson, 447 U.S. 231 (1980) (J. Stevens, concurring), on the issue of pre-arrest silence. It said: if a defendant's silence is not in response to a choice compelled by the government to speak or remain silent, then testimony about the defendant's silence presents a routine evidentiary question that turns on the probative significance of that evidence. Borg, A09-0243*13 (Minn. Sept. 21, 2011) (citing Jenkins, 447 U.S. at 243-45 (J. Stevens, concurring)). In other words, the Fifth and Fourteenth Amendments do not even apply.

What this case means for practical purposes is that it's up to the defendant's lawyer to make an argument that letters like this are insignificant-certainly nowhere near an admission of guilt. More importantly, it is essential that a defendant hire a seasoned trial lawyer who knows which objections to make in order to keep evidence like this out as well as to preserve his or her rights in the event an appeal is necessary. I've dealt with trials where the prosecutor tried to argue to the jury that my client's decision not to give a statement was equal to guilt. If you have a criminal case looming on the horizon, your best protection is immediately hiring an attorney with years of trial experience who can skillfully handle the government's evidence and anticipate and rebut the prosecutor's arguments in the event your case goes to trial. Call Ryan Pacyga Criminal Defense at 612-339-5844 to speak to Mr. Pacyga, and please refer to the Recent Cases tab for additional information about results the firm has achieved in other similar cases, both in and out of court. Man, this one just plain makes me mad!