A Defendant’s Silence in Response to Police Letter Asking For Statement is Not Protected Under Compulsory Testimony Provision of Fifth Amendment

State v. Borg, Minn.S.Ct., 9/21/2011.  This comes up from the court of appeals, about which I wrote here.  I missed this back in November and would have continued to miss it were it not the subject of yet another opinion today.  Before the state charged Mr. Borg with a sex offense, the lead investigator sent him a letter in which he referred to a previous phone call with Mr. Borg during which Mr. Borg said he had hired an attorney to represent him, and in which he also asked Mr. Borg to have his attorney contact him “to arrange an interview appointment.”  There was no proof that Mr. Borg actually got the letter.

By the time everybody gathered in the courtroom for trial the facts had changed.  The state told the trial court, without objection from the defense, that the investigator had first sent a letter to Mr. Borg and then called him on the phone, both times asking if Mr. Borg would be willing to make a statement.  Mr. Borg said, no.  The trial court ruled that the investigator could testify in the state’s case in chief that he sent a letter to Mr. Borg to which he received no response.  However, the investigator could not testify about the telephone call because Mr. Borg said during it that he had an attorney.

The court of appeals reversed the trial court on these rulings.  Justice G. Barry Anderson, writing for a four person majority, reversed the court of appeals, concluding that there was no compelled testimony – in this case, silence, adopting the reasoning of a concurrent opinion by Justice Stevens in a supreme court opinion, Jenkins v. Anderson, 447 U.S. 231 (1980):

When the government does nothing to compel a person who is not in custody to speak or to remain silent, however, then the voluntary decision to do one or the other raises no Fifth Amendment issue. 447 U.S. at 241, 100 S.Ct. 2124 (Stevens, J., concurring). We hold that 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.”

Justice Meyer dissented, saying that the state improperly commented on Mr. Borg’s s counseled silence in violation of both his Fifth Amendment and Due Process rights.  Justice Page joined her dissent.  Justice Paul Anderson joined her dissent on the Fifth Amendment section only.