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Privilege – Comment on Silence, Permissible Impeachment, § 905.13

State v. Maurice S. Ewing, 2005 WI App 206
For Ewing: David R. Karpe

Issue/Holding: Where the defendant waived his rights and gave pre-trial statements to the police and presented an alibi defense at trial, prosecutorial evidence that the defendant had not revealed the alibi during those statements, and exploitation of that omission during closing argument, did not amount to impermissible comment on silence. “Rather, the prosecutor was highlighting the inconsistency between what Ewing did say and what his alibi witnesses testified to at trial.” ¶¶10-13.

Various authorities— State v. Feela, 101 Wis.  2d 249, 268, 304 N.W.2d 152 (Ct. App. 1981); State v. Wulff, 200 Wis.  2d 318, 340-41, 546 N.W.2d 522 (Ct. App. 1996), rev’d on other grounds207 Wis.  2d 143, 557 N.W.2d 813 (1997); United States v. Hale, 422 U.S. 171 (1975)—distinguished, on same basis: “The prosecutor impeached the alibi witnesses with Ewing’s statements, not his non-statements.” ¶¶14-16.

For discussion, generally, on constitutional principles, see U.S. v. Santiago, 428 F. 3d 699 (7th Cir 2005).

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