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Plea-Withdrawal – Post-sentencing – Procedure – “Negative Inference” from Defendant’s Testimony Insufficient

State v. Robert J. Nichelson, 220 Wis. 2d 214, 582 N.W.2d 460 (Ct. App. 1998)
For Nichelson: Paul M. Moldenhauer

Issue/Holding:

It therefore appears to be an issue of first impression in Wisconsin whether a court can accept a negative inference to establish proof by clear and convincing evidence. Under the beyond a reasonable doubt standard, a negative inference is sufficient only if there is independent support in the evidence. See Stewart v. State, 83 Wis.2d 185, 193, 265 N.W.2d 489, 493 (1978) (overruled on other grounds). We believe that the same rule should apply to the clear and convincing standard in the present case. …

 

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