Cited by

“In rare cases, [appellate courts] may address an issue not raised at the district court if the interests of justice require consideration of the issue and when doing so would not work an unfair surprise on a party.” State v. Borg

State v. Borg , (citing Jenkins v. Anderson, 447 U.S. 231, 238 (1980)).

(stating that the right against self-incrimination “applies only ‘when the accused is compelled to make a testimonial communication that is incriminating’ ” (alteration in original) (quoting Fisher v. United States, 425 U.S. 391, 408 (1976

(reviewing de novo whether Fifth Amendment privilege prohibits eliciting certain testimony).

To make this determination, we “examine the re cord as a whole and consider the strength of the state’s evidence and the we akness of any defense evidence.” State v. Borg , (quotation omitted).

then the voluntary decision to do one or the other raises no Fifth Amendment issue.” (citing Jenkins v. Anderson , 447 U.S. 231, 241 (1980) (Stevens, J., concurring)).

n.2 (Minn. 2011) (citing United States v. Frazier, 408 F .3d 1102, 1111 (8th Cir. 2005)).

Of course, n.4 (Minn. 2011).

Const. art. 1, § 7; see also State v. Borg

The Minnesota Supreme Court has agreed with Justice Steven’s analysis, holding “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.’” (quoting Jenkins, 447 at 244, 100 S. Ct. at 2132 (Stevens, J., concurring)).

“A right to counsel arises under the Fifth Amendment when a suspect is in custody in order to protect the suspect’ s constitutional privilege against self-incrimination.” -46 (Minn. 2011) (citing Miranda, 384 U.S. at 469, 86 S. Ct. at 1625).

The interests- of-justice requirement is satisfied if the appellant (a) is rel ying on a “rule of law that was unknown at the time of trial,” and (b) has identified a “fundam ental unfairness to the defendant [that] needs to be addressed.” (alteration in original) (quotation omitted).

Fletcher v. Weir , 455 U.S. 603, 607, 10 2 S. Ct. 1309, 1312 (1982); State v. Borg

1602 ; State v. Borg , , 545-46 (Minn. 2011).

We review this constitutional question de novo.2 (reviewing de novo whether the Fifth Amendment privilege prohibits eliciting certain testimony during the State’s case in chief).

the voluntary decision to do one or the other raises no Fifth Amendment issue.” State v. Borg

the voluntary decision to do one or the other raises no Fifth Amendment issue.” (citation omitted).

d 535, 543 (Minn. 2011) (holding that pre-arrest silence does not implicate the Fifth Amendment unless the government has compelled a defendant to speak or remain silent).

More recently, the Minnesota Supreme Court ruled that, during its case-in-chief, the state may introduce a defendant’s failure to respond to a prearrest, pre-Miranda letter from police requesting an interview.

But traditionally, “[t]he Sixth Amendment right to counsel attaches as soon as the suspect is subject to adverse judicial proceedings by way of formal charge, preliminary hearing, indictment, information, or arraignment.” (quotations omitted).

n.1 (Minn. 2011) (refusing to address issues raised in a petition for cross-review that was denied).

Taylor next argues that his lawyer’s silence in the face of Taylor’s assertion against him supports plea withdrawal

After we issued our decision on Borg's direct appeal, and denied his second petition for review, WL 987273 (Minn.App.

have the assistance of counsel for his defence.’” (quoting U.S. Const. amend.

-42 (Minn.2011) (citations and quotations omitted).