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Pre-Miranda Silence

State v. Thomas S. Mayo, 2007 WI 78, affirming unpublished opinion
For Mayo: Keith A. Findley, UW Law School


¶46      We agree with Mayo’s position, and the State’s concession at oral argument, that the prosecutor’s remarks on Mayo’s pre-Miranda silence, and the testimony she elicited in that regard, during the State’s opening statement and case-in-chief, violated Mayo’s right to remain silent under the Fifth Amendment of the United States Constitution, and Article I, Section 8 of the Wisconsin Constitution. We have held that it is a “violation of the right to remain silent for the State to present testimony in its case-in-chief on the defendant’s election to remain silent during a custodial investigation, after arrest.” Brecht, 143 Wis. 2d at 310-11 (citation omitted). When a defendant testifies, “references by the State during cross examination, on redirect and in closing arguments to defendant’s pre-Miranda silence do not violate the defendant’s right to remain silent.” Adams, 221 Wis. 2d at 8 (citation omitted). However, the prosecutor’s references to Mayo’s pre-Miranda silence in her opening statement and examination of the State’s witnesses, prior to Mayo’s testimony, were a violation of Mayo’s constitutional right to remain silent.

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