On Point: 2. Comment on use of privilege

State v. Tomas Jaymitchell Hoyle, 2023 WI 24, 3/31/22, reversing an unpublished court of appeals opinion; case activity (including briefs)

This split decision is important for two reasons. First, it authorizes the State to penalize the defendant for exercising his 5th Amendment right to remain silent at trial. Second, it foreshadows how Justice Hagedorn will likely rule in cases involving a broad range of criminal and civil constitutional rights that were established after the framers wrote the United State Constitution.

State v. Tomas J. Hoyle, 2020AP1876-CR, petition for review of an unpublished opinion granted 9/14/22; case activity (including briefs)

Issue: (adapted from the State’s PFR):

The 5th Amendment prohibits a prosecutor from commenting  on defendant’s failure to to the stand. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). In a case where the defendant exercises his right not to testify, does the prosecution violate this prohibition by telling the jury that the victim’s account is “uncontroverted” and no evidence was offered to dispute it?

State v. Tomas Jaymitchell Hoyle, 2020AP1876-CR, 4/26/22, District 3 (not recommended for publication); case activity (including briefs)

Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the prosecutor repeatedly argued that the testimony from “Hannah” (the complaining witness) was “uncontroverted” and told the jury it had “heard no evidence” and that there was “absolutely no evidence” disputing her account of the alleged sexual assault. Under the circumstances of this case, the court of appeals holds that the prosecutor’s arguments violated Hoyle’s Fifth Amendment rights.

State v. Carmen L. Doss, 2008 WI 93, reversing 2007 WI App 208

For Doss: Robert R. Henak

Issue/Holding: Closing argument remarks addressed to Doss’s failure to explain missing funds did not amount to a comment on her failure to testify:

¶81      …

[F]or a prosecutor’s comment to constitute an improper reference to a defendant’s failure to testify,

State v. Maurice S. Ewing, 2005 WI App 206
For Ewing: David R. Karpe

Issue/Holding: Where the defendant waived his rights and gave pre-trial statements to the police and presented an alibi defense at trial, prosecutorial evidence that the defendant had not revealed the alibi during those statements, and exploitation of that omission during closing argument, did not amount to impermissible comment on silence. “Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial.” ¶¶10-13.

State v. John S. Cooper, 2003 WI App 227, PFR filed 11/14/03
For Cooper: John A. Birdsall

Issue/Holding:

¶19. The test for determining if there has been an impermissible comment on a defendant’s right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant’s right to remain silent.