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Briefs – Argument – Concession of Error by State

State v. Gary A. Johnson, 2007 WI 32, affirming 2006 WI App 15For Johnson: Eileen A. Hirsch, SPD, Madison Appellate


¶14      … The State concedes before this court, as it did in the court of appeals, that Johnson did not freely consent to the search of his vehicle. [4]

 [4]  The dissent faults the State for making this concession. Dissent, ¶60 n.2. It also takes Johnson to task for not raising the issue of whether his consent was voluntarily given. Id. It asserts that, due to the State’s concession, this court “must raise and decide the issue of consent to search Johnson’s vehicle with no assistance to this court from either party.” Id.
We note, however, that an attorney has an ethical obligation not to make arguments before the tribunal that the attorney believes to be frivolous. Compare SCR 20:3.1(a) with Wis.  Stat. § (Rule) 802.05. Cf. State v. Parent, 2006 WI 132, ¶19, ___Wis. 2d ___, 725 N.W.2d 915. Thus, even when a concession of law is not accepted by a court, a prosecutor should be commended, not condemned, for exercising careful judgment and attempting to conform to our rules. Of course, a concession of law does not bind the court. The court determines the law, not the parties. Bergmann v. McCaughtry, 211 Wis.  2d 1, 7, 564 N.W.2d 712 (1997). …

A somewhat obscure but non-controversial matter: the reviewing court isn’t bound by a State’s concession of error in a criminal case but must instead conduct its own, independent review of the issue. Civil appeals are handled differently, of course, a concession by a party being the end of it; c’est la guerre (or is it, vive la difference?). The twist here is the majority’s assertion that the dissent “takes Johnson to task” not himself raising the State-conceded issue. It would be troubling, indeed, if any Justice undertook to criticize defense counsel for, in effect, failing to sua sponte raise a seemingly uncontroverted issue. But the majority does seem to have overstated the dissent’s criticism—rather, the dissent seems to be saying only that the absence of adversarial argument doesn’t bar the court’s review. And as noted, this is not a controversial position. It ought to be stressed that the particular issue (consent to search) was raised in the trial court, so the record was fully developed on the point; otherwise, quite different concerns relating to State waiver and denial of the defense right to a full and fair suppression hearing probably would have barred review.

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