State v. Borg
2011 Minn. LEXIS 564
| Minn. | 2011Background
- Borg was convicted of third-degree criminal sexual conduct in Minnesota; the State introduced testimony about Borg’s silence in response to a police interview request.
- The court of appeals reversed, holding pre-arrest, pre-Miranda silence used in the State’s case in chief violated the Fifth Amendment.
- The incident occurred May 6–7, 2004 at Grand Casino; M.W. alleged non-consensual intercourse during a group stay.
- Niemeyer of Mille Lacs Tribal Police sent a July 21, 2004 letter to Borg requesting an interview and noting Borg had counsel; a supplemental report stated Borg said he would not speak.
- Borg was charged November 24, 2004; trial began September 2008; Niemeyer testified that Borg did not respond to the letter and Borg testified he never received a letter.
- The Minnesota Supreme Court held the Fifth Amendment did not bar the State from presenting the silence evidence in its case in chief and remanded for consideration of remaining arguments.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Fifth Amendment prohibits using pre-arrest silence in the State’s case in chief | Borg argues pre-arrest silence is protected | State contends no protection when silence precedes arrest and is noncustodial | No; admissible evidence in chief |
| Whether Niemeyer’s letter constitutes government questioning and thus trigger Fifth Amendment concerns | Niemeyer’s letter is a request for interview, not questioning | Letter coerces a response and thus constitutes questioning | Letter did not constitute questioning; permissible in chief |
| Whether due process requires reversal despite waiver | Borg asserts due process violation due to improper silence use | State argues waiver and no fundamental unfairness | Waived due process claim; court proceeds on Fifth Amendment analysis |
| Whether evidence of pre-arrest silence should be evaluated under plain error | Dissenting view would treat as plain error | Majority declines sufficient basis for plain-error relief | Not controlling; issue analyzed under Fifth Amendment and waiver doctrines |
| Whether Niemeyer’s testimony about Borg’s silence prejudiced the trial | Silence evidence materially supported guilt | Evidence was probative and not unduly prejudicial | Conviction reversal not required; Fifth Amendment governs |
Key Cases Cited
- Griffin v. California, 380 U.S. 609 (U.S. 1965) (prosecution cannot comment on a defendant’s decision not to testify)
- Jenkins v. Anderson, 447 U.S. 231 (U.S. 1980) (impeachment of a defendant who testifies may use pre-arrest silence)
- Doyle v. Ohio, 426 U.S. 610 (U.S. 1976) ( Miranda warnings carry implicit assurances silence will carry no penalty)
- State v. Billups, 264 N.W.2d 137 (Minn. 1978) (pre-arrest/post-Miranda silence and due process)
- State v. Dunkel, 466 N.W.2d 425 (Minn.App. 1991) (extension of Billups to pre-Miranda silence)
- State v. Green, 747 N.W.2d 912 (Minn. 2008) (interests-of-justice balancing in unobjected-to errors)
- State v. Jones, 753 N.W.2d 677 (Minn. 2008) (plain-error standard in appellate review)
- United States v. Frazier, 408 F.3d 1102 (8th Cir. 2005) (Fifth Amendment question absence of government compulsion)
- United States v. Oplinger, 150 F.3d 1061 (9th Cir. 1998) (pre-arrest silence not compelled; admissible in some contexts)
- United States v. Zanabria, 74 F.3d 590 (5th Cir. 1996) (pre-arrest silence not compelled in certain contexts)