On Point blog, page 1 of 1
COA determines any error by State commenting at trial on defendant asserting her right to silence was harmless.
State v. Elizabeth A. Erickson, 2025AP1150-CR, 4/22/26, District II (ineligible for publication); case activity
The COA affirmed the defendant’s conviction for disorderly conduct and the circuit court’s order denying the defendant’s motion for postconviction relief alleging her counsel was ineffective for failing to object to the State’s comments at trial that she did not tell police about a dog causing injuries to the victim. The COA did not address whether the State’s comments violated the defendant’s right against self-incrimination, but determined any error was harmless.
How to beat the “harmless error” rap
For the 2015 SPD conference, Judge Sankovitz and Attorneys Rob Henak and Melinda Swartz prepared an excellent outline on a problem that plagues many defense lawyers on appeal. They have a great issue. They win it, but then the court of appeals or supreme court finds the error harmless. This detailed, well-researched outline walks you through the history of the “harmless error” doctrine and offers ideas for how to beat it in various situations.
Appellate Procedure – Harmless Error – Comments on pre-Miranda Silence
State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School
Issue/Holding: Erroneous comments on pre-Miranda silence were harmless, given both infrequency of occurrence and also absence of impact on the defendant’s decision to testify (which then properly exposed him to such comment), ¶¶49-52.