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Obstructing, § 946.41 – Exculpatory Denial Exception Doesn’t Extend to False Accusation of Others

State v. Brent R. Reed, 2005 WI 53, affirming as modified 2004 WI App 98, and overruling State v. Joseph M. Espinoza, 2002 WI App 51
For Reed: David H. Weber


¶21    … Wisconsin JI——Criminal 1766A (2003) accurately sets forth the elements of obstructing an officer based on giving false information to police as follows:

1.  The defendant knowingly gave false information to an officer.2.  The officer was doing an act in an official capacity.

3.  The officer was acting with lawful authority.

4.  The defendant intended to mislead the officer.

…¶25 The focus is clearly on what the defendant intended to do by knowingly making false statements, not on the eventual outcome. If the intent was to purposefully deceive, or if the defendant was aware that making the false statement was practically certain to deceive, the statute is satisfied. Whether the police were thwarted, therefore, is immaterial.

¶48 In sum, we conclude that there is no exculpatory denial exception in the obstructing statute. The statute criminalizes all false statements knowingly made and with intent to mislead the police. Although the State should have sound reasons for believing that a defendant knowingly made false statements with intent to mislead the police and were not made out of a good-faith attempt to defend against accusations of a crime, we conclude that the latter can never include the former; knowingly providing false information with intent to mislead the police is the antithesis of a good-faith attempt to defend against accusations of criminal wrongdoing. Accordingly, we overrule Espinoza. Because the complaint in this case is satisfactory, we affirm the decision of the court of appeals and remand the matter to the circuit court for further proceedings consistent with this opinion.

The majority stresses that “our decision today does not overrule, indeed it does not even implicate, Henes v. Morrissey, 194 Wis. 2d 338, 533 N.W.2d 802 (1995), or State v. Hamilton, 120 Wis. 2d 532, 356 N.W.2d 169 (1984),” ¶21 n. 3. In those cases the individual’s silence, including in particular refusal to identify themselves, couldn’t support obstructing charges. But the court now explains that there are two forms of obstructing: making the cop’s job more difficult, and giving false information with intent to mislead (which is apparently a distinct form of the offense; see Wis JI—Crim No. 1766 for the elements). Silence simply isn’t “false information” by definition; and on the facts of those cases there was no proof that the investigation was impeded in any way. This somewhat gratuitous explication isn’t a particularly comforting embellishment of the idea that these cases aren’t being overruled. If it was once possible to argue these cases to mean that obstructing absolutely could not be based on mere refusal to identify oneself, it now may no longer be. Certainly, there is no fifth amendment bar on penalizing such refusal, Larry D. Hiibel v. Sixth Judicial District Court, 03-3554, 542 U.S. __, 6/21/04, but whether our obstructing statute provides adequate notice that any given citizen in any given situation runs such a risk is something else.Authority for idea that failure to ID self alone doesn’t amount to obstructing (at least where the police lacked reasonable suspicion to believe a specific crime was being committed): City of Roswell v. Hudson, 2007NMCA-034.


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