Asking Witness to Tell Grand Jury Defendant Exercised Right to Remain Silent

The Supreme Court of Hawaii held that a prosecutor flagrantly violated a defendant’s Hawaii due process right to a fair and impartial grand jury hearing by adducing evidence during a grand jury proceeding to show the defendant invoked his constitutional right to remain silent.

The Court’s opinion was issued in an appeal brought by Troy D. Borge, Jr., after his motion to dismiss an indictment was denied by the circuit court. Borge was criminally charged for a November 5, 2019, incident at the P’ia Youth and Cultural Center. The State alleged Borge struck the victim on the head several times with a piece of wood, resulting in serious injuries.

A grand jury on November 22, 2019, indicted Borge for attempted second-degree murder. That indictment was dismissed on April 13, 2020, due to the State improperly presenting hearsay testimony regarding an eyewitness’ statements to police and statements to the victim’s treating physician. The matter was presented a second time to a grand jury, which again returned an indictment on June 29, 2020, for attempted second-degree murder.

Borge moved on July 17, 2020, to dismiss that indictment.  He argued the prosecutor committed prosecutorial misconduct before the grand jury in violation of his due process rights by improperly eliciting testimony that he had exercised his right to remain silent.

At the grand jury proceeding, the prosecutor asked detective Dennis Clifton, “And you didn’t take any statement from Mr. Borge?” Clifton responded, “We attempted to question him, but he requested to speak to an attorney.” The circuit court on September 3, 2020, denied Borge’s motion to dismiss the indictment.

On December 7, 2020, Borge entered a no contest plea to the lesser included offense of assault in the first degree. He reserved his right to appeal the denial of the motion to dismiss. The circuit court imposed a 10-year prison sentence and ordered restitution of $1,461,444.01 for the victim’s medical bills. The Intermediate Court of Appeals (“ICA”) affirmed, and Borge timely appealed. The Hawaii Supreme Court granted certiorari.

The Court began its discussion by noting that Article I, section 5 of the Hawaii Constitution provides that no person shall be deprived of liberty without due process of law. The Court stated it has recognized that due process of law requires a fair and impartial grand jury proceeding.  State v. Rodrigues, 629 P. 2d 1111 (Haw. 1981). Prosecutorial misconduct that undermines the fundamental fairness and integrity of the grand jury process is presumptively prejudicial. State v. Wong, 40 P. 3d 914 (Haw. 2002). Under Hawaii law, “prosecutorial misconduct … refers to any improper action committed by a prosecutor, however harmless or unintentional.” State v. Williams, 456 P. 3d 135 (Haw. 2020).

The Court noted that it has repeatedly recognized the importance of the constitutional right against self-incrimination. See, e.g., State v. Mainaaupo, 178 P.3d 1 (Haw. 2008). Article I, section 10 of the Hawaii Constitution secures this right: “nor shall any person be compelled in any criminal case to be a witness against oneself.” In fact, the state Supreme Court treats this right as “sacrosanct.” See Brown v. Walker, 161 U.S. 591 (1896) (“The reprobation of compulsory self-incrimination is an established doctrine of our civilized society.”); Havard v. State, 94 So.3d 229 (Miss. 2012) (“A defendant’s right against self-incrimination is not only sacrosanct, but is commonly known across this land.”).

The Hawaii Supreme Court has held that the right against self-incrimination bars the prosecution from adducing evidence of or commenting on a defendant’s invocation of their right. See State v. Beaudet-Close, 468 P.3d 80 (Haw. 2020). Importantly, the Supreme Court has held that the prosecution is prohibited from directly or indirectly implying guilt by getting a witness to testify regarding a defendant’s decision to exercise their right to remain silent. State v. Tsujimura, 400 P.3d 500 (Haw. 2017). In situations where the prosecution runs afoul of the forgoing prohibition, the Supreme Court applies the following test: “whether the prosecutor intended for the information elicited to imply the defendant’s guilt or whether the character of the information suggests to the factfinder that the defendant’s prearrest silence may be considered as inferential evidence of the defendant’s guilt.” Id. 

This case implicates the Tsujimura test. While the prosecutor may not have known Clifton would respond as he did, the prosecutor knew Borge had refused to make a statement. “If a grand juror had asked that question, the prosecutor or grand jury counsel would have needed to inform the jury that it was not a proper question,” the Court wrote. “It is difficult to understand why, in any grand jury proceeding, a prosecutor would ask an officer whether he obtained the defendant’s statement when the answer is ‘no,’” it added. 

The Court ruled: “in the grand jury context, the test is whether the prosecutor intended for the information elicited to imply probable cause exists orwhether the character of the information suggests to the jurors that the accused’s silence may be considered as inferential evidence to find probable cause.”

Applying that test, the Court concluded that regardless of whether the prosecution anticipated Clifton’s response, “the character of the evidence clearly indicates its presentation was improper.” The prosecution extracted testimony from the witness that Borge refused to give a statement before the grand jury. The Court declared that the “prosecutor should not have posed the question in the first place” and that the “question and answer constituted a flagrant violation of Borge’s due process rights.” Thus, the Court held that the circuit court abused its discretion by denying Borge’s motion to dismiss the indictment. 

Accordingly, the Court vacated the judgments and orders of the circuit court and ICA and remanded to the circuit court with instructions to dismiss the indictment. See: State v. Borge, 526 P.3d 435 (Haw. 2023).