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Impeachment with Post-Miranda Silence – Generally: Due Process Analysis

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.


¶14      Although Cockrell describes his challenge to the prosecutor’s use of his post- Miranda silence as a violation of his Fifth Amendment right to remain silent, the substance of his argument is the due process analysis employed in Doyle v. Ohio, 426 U.S. 610 (1976), which we applied in State v. Wulff, 200 Wis. 2d 318, 546 N.W.2d 522 (Ct. App. 1996), and State v. Nielsen, 2001 WI App 192, ¶31, 247 Wis. 2d 466, 634 N.W.2d 325, the two cases on which Cockrell primarily relies. Cockrell does not cite to any cases that do not use the Doyle due process framework to analyze a prosecutor’s use of a defendant’s silence to cross-examine the defendant and in closing argument. [3] Therefore, we analyze Cockrell’s challenge under the due process clause of the Fourteenth Amendment. The application of constitutional principles to undisputed facts presents a question of law, which we review de novo. See, 247 Wis. 2d 466, ¶32.


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