A Defendant’s Pre-counseled, Pre-arrest, Pre-Miranda silence in Response to Police Interrogation is Not Admissible in State’s Case in Chief.

State v. Borg, Minn.Ct.App., 3/9/2010.  To celebrate her eighteenth birthday, M.W. and friends, which included Mr. Borg, partied and gambled at a nearby casino, then retired to a motel room for a sleepover.  M.W. claimed that some time during the remainder of the night Mr. Borg had unwanted sex with her.  The state charged Mr. Borg with third degree criminal sexual conduct.  Mr. Borg claimed that the sex was consensual.  The jury rejected this defense and convicted him.

Before the state arrested Mr. Borg a police investigator sent him a letter in which the officer asked to speak with him.  Mr. Borg did not respond to the letter.  This same officer telephoned Mr. Borg, who declined to speak with the officer and invoked his right to counsel.  Over defense objection, the trial court permitted the state to introduce testimony about the letter and the lack of response to it, and allowed the state to do so before Mr. Borg took the witness stand.

The appellate court concludes that evidence of Mr. Borg’s pre-counseled, pre-arrest and pre-Miranda silence is not admissible in the state case in chief.  The court also concludes that the admission of this evidence was not harmless.  Re-do.