Judge: Senser's Silence Can't Be Used Against Her

MINNEAPOLIS (WCCO) -- Next week one of the most anticipated Twin Cities criminal trials in recent memory will get underway.

Amy Senser faces three counts of criminal vehicular homicide in connection with the death of 38-year-old Anousone Phanthavong. Phanthavong was killed as he was filling his stalled car with gas on an Interstate 94 exit ramp last August.

Senser says she did not realize she had hit anyone that night. Her trial promises to be both lengthy and complex.

One potential controversy surrounding the case began and ended in the last 24 hours.

Judge Daniel Mabley ruled Wednesday that Senser's refusal to talk to police could be used against her.

On Thursday, however, the Mabley reversed his own ruling. He offered no explanation when he ruled that Senser's silence cannot be held against her.

Law professor Joe Daley said Mabley was right to make the correction.

"The Fifth Amendment gives her an absolute right to remain silent," he said.

Senser's defense will argue that Senser did not know her Mercedes SUV hit Phantavong and that Interstate 94 was cluttered with construction debris that night.

The Minnesota Supreme Court has ruled in a similar case that the prosecution has to prove the person on trial knew they were hitting a person.

Daly thinks this is an area where the defense may have an edge.

"It's very possible there could be reasonable doubt whether she hit a human being or whether she knew she hit a human being," Daley said. "It's not illegal to hit one of those highway cones and keep going."

The defense will not be allowed to use evidence that Phanthavong had cocaine in his system. Prosecutors recently added another charge accusing Senser of gross negligence, because she was allegedly talking on her cell phone at the time of the accident. Daly thinks this is the prosecution's strongest charge.

"If you are grossly negligent and you hit a human being, even if you don't know you hit a human being, that is criminal vehicular homicide," he said.

One big question is whether the prosecution will call Senser's teenage daughter to testify against her mother.

Last week the prosecution revealed Senser had told her daughter she was drinking that night. The other question is will Senser testify on her own behalf.
Senser is the wife of former Vikings star Joe Senser.