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Privilege – § 905.13, Comment on Silence

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.State v. Nielsen, 2001 WI App 192, 32, 247 Wis. 2d 466, 487-88, 634 N.W.2d 325, review denied, 2001 WI 117, 247 Wis. 2d 1036, 635 N.W.2d 784 (Wis. Oct. 23, 2001) (No. 00-3224-CR). The court must look at the context in which the statement was made in order to determine the manifest intention that prompted it and its natural and necessary impact on the jury. Id.

Comment with respect to Cooper’s prearrest silence — that Cooper chose not to talk to investigating officer at some point after previously talking — not manifestly intended to imply invocation of right to silence, but instead explained why the investigation terminated at that point. ¶19. And, that Cooper remained silent at one point during postarrest interrogation in which he was otherwise responsive similarly not intended to be comment on invocation of right to silence. ¶20.

 

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