Supreme Court At-a-Glance Contributor Ryan M. Borden, Practicing at Ford, McDonald, McPartlin & Borden in Portsmouth, NH with a focus on bankruptcy representation of trustees, creditors and debtors, corporate law and commercial litigation.

No. 2019-0322

January 13, 2021

Affirmed in part and Remanded


  • Whether the trial court erred in denying Defendant’s motion to exclude certain evidence in violation of his Fifth Amendment rights.
  • Whether the trial court erred in providing only a portion of confidential records pertaining to the victim to the Defendant.


The Defendant was convicted on three counts of aggravated felonious sexual assault and one count of felonious sexual assault. The Defendant argued that the trial court erred by denying his motion to exclude evidence that he answered “no comment” when police questioned him about sexual assault allegations during a non-custodial, telephonic interview.  The Defendant contended that his “no comment” was an invocation of his Fifth Amendment privilege. He also argued the trial court may have erred by disclosing only a portion of confidential records pertaining to victim after conducting an in camera review of the records.

The Defendant first argued that the inclusion of his “no comment” statement and his silence in response to questioning about the sexual assault allegations violated his Fifth Amendment right against self-incrimination. The Court first analyzed whether the “no comment” statement and his silence  in response to questioning were effective invocations of the privilege. The Court noted that the Defendant’s interview was non-custodial and no Miranda warning were provided.  Using the same standard as applied to post-Miranda custodial interviews, the Court applied the totality of the circumstances analysis to his statements.

The Court held that in a non-custodial, pre-Miranda interview, a defendant must unambiguously invoke their Fifth Amendment privilege, and stated that it was applying the “express invocation” standard set forth in Justice Alito’s plurality opinion in Salinas v. Texas (S. Ct. 2013).  The Court assumed, as the trial court did, that the Defendant may selectively invoke the Fifth Amendment privilege.  The Court found that the “no comment” statement was not an unambiguous invocation of the privilege, because only the Defendant knew his reasoning for not answering.  Ultimately, the Court found that the Defendant continued the conversation and did not hang up for at least thirty minutes after first stating “no comment.” The Defendant failed to express during the interview that he did not wish to speak with the officer.  The fact that the Defendant eventually hung up and terminated the call after repeatedly being asked about the sexual assault allegations demonstrated he knew how to unambiguously end the conversation.  The Court affirmed the trial’s court refusal to exclude the “no comment” statement.

Next, the Defendant argued that the trial court may have erred in only disclosing a portion of certain confidential records pertaining to the victim after conducting an in camera review.  The Court noted that it recently clarified the standard a trial court must apply in determining whether to disclose confidential records to a defendant in State v. Girard (2020).  The Court stated that the trial court did not have the benefit of Girard when it conducted its in camera review, and therefore remanded that issue to the trial court for the limited purpose of reviewing the records in accordance with the standard established by Girard.


Gordon J. MacDonald, attorney general (Zachary L. Higham, attorney, on the brief and orally), for the State. Anthony J. Naro, assistant appellate defender, Concord, on the brief and orally, for the defendant.