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Issue raised for the first time on appeal is forfeited

City of Brookfield v. Cassandra L. Gissal, 2014AP1751-FT, District 2, 12/23/14 (1-judge decision; ineligible for publication); case activity

At trial Gissal challenged the admissibility of her statements to police because she wasn’t given Miranda warnings, but the trial court ruled she wasn’t in custody for Miranda purposes. On appeal she abandons this claim and argues instead that allowing the officer to testify to her statements violated her Fifth Amendment privilege and that she wouldn’t have testified at trial if the officer had been barred from relating her statements. (¶¶5-7).

¶7        …. Aside from the fact that she cites absolutely no authority, and aside from the fact that she had lost her custodial interrogation challenge at trial—thus paving the way for the City to put in this testimony—and aside from the fact that she is wrong about the law, this is simply a new issue. The failure to have made this argument at trial forfeits her right to raise this issue now on appeal. State v. Caban, 210 Wis. 2d 597, 605-06, 563 N.W.2d 501 (1997). And although we may, in our discretion, decide to address an issue that has been forfeited, this court will not do so here because the issue, so far as it is understood by this court, has no merit.

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