This split decision is important for two reasons. First, it authorizes the State to penalize the defendant for exercising his 5th Amendment right to remain silent at trial. Second, it foreshadows how Justice Hagedorn will likely rule in cases involving a broad range of criminal and civil constitutional rights that were established after the framers wrote the United State Constitution.
A jury convicted Hoyle of 2nd-degree sexual assault of “Hannah” (age 15) in a case where there was no physical evidence of, or eyewitnesses to, the alleged assault. It was Hannah’s word against Hoyle’s, and Hoyle chose to exercise his 5th Amendment right not to testify.
During closing arguments, the DA repeatedly told the jury that Hannah’s testimony was “uncontroverted” and that there was “no evidence disputing” her version of events. He told the jury that it needed to make its decision “based on the uncontroverted testimony of what she says occurred. They [the defense] don’t disagree it’s uncontroverted.”
Only Hoyle could rebut Hannah’s accusation. Thus, Hoyle argued that the DA’s closing argument was an adverse comment on his decision to take the 5th in violation of Griffin v. California, 380 U.S. 609 (1965).
The majority opinion, written by Ziegler (joined by Karofsky, RGB, Hagedorn, and Roggensack) sees this as an open-and-shut case. Griffin held that the 5th Amendment forbids either comment by the prosecution on the accused’s silence or instructions by the court that such silence is evidence of guilt.” (Opinion, ¶19) (quoting Griffin at 614). All federal circuits and Wisconsin’s court of appeals agree on the test for determining whether the DA has violated the 5th Amendment by adversely commenting on the defendant’s silence. (Opinion, ¶26 n.7 and ¶27)(citing n State v. Jaimes, 2006 WI App 93, 292 Wis. 2d 656, 715 N.W.2d 669 and listing cases from all federal circuits).
The test is: ” “Was the language used manifestly intended to be, or was it of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify?” Morrison v. United States, 6 F.2d 809, 811 (8th Cir. 1925).
The majority says that in Hoyle’s case the answer is “no.” The DA did not even comment on Hoyle’s silence. He merely described the State’s evidence as “‘uncontroverted” ‘to remind the jury that they could evaluate only the evidence presented at trial and not speculate about other possible evidence.” Opinion, ¶3. In addition, defense counsel identified other types of evidence that the State had not presented at trial, so the jury would not have assumed that only Hoyle could rebut Hannah’s testimony. Id.
The majority notes that SCOTUS has never clearly established that a DA may not comment on the evidence in a way that indirectly refers to the defendant’s silence. Opinion, ¶22 (quoting Edwards v. Roper, 688 F.3d 449, 460 (8th Cir. 2012)).
The dissent (written by Dallet and joined by AWB) argues that oblique references to a defendant’s decision not to take the stand invites the jury to impermissibly infer that the defendant’s silence demonstrates guilt. (Dissent, ¶92)(citing Lakeside v. Oregon, 435 U.S. 333, 345 (1978) (Stevens, J., dissenting). Thus, state and federal courts across the country have held that even indirect comments on the defendant’s decision not to testify violate the 5th Amendment if they are manifestly intended to be or are of such a character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify. (Dissent, ¶¶92-93)(including string cites to cases across the country). Here, the DA “all but told the jury that it had to convict Hoyle because ‘[t]here is absolutely no evidence disputing’ the victim’s account of the sexual assault.” (Dissent, ¶99).
This opinion also showcases a dramatic conflict between the concurrence and the dissent over originalism and the meaning of the United States Constitution. The concurrence treats readers to a 25-page recitation of the history of the right against self-incrimination starting with Gratian (left), a 12th Century Benedictine monk from Bologna, continuing through the Inquisition, ecclesiastical courts, prerogative courts in the Elizabethan and Stuart periods, the Star Chamber, and, of course, the founding fathers who drafted the U.S. Constitution. (Concurrence, ¶¶43-67.) If you’re thinking that RGB wrote the concurring opinion, you are wrong. Hagedorn wrote it, and she joined him.
To make a long concurrence short, Hagedorn, citing Scalia and Thomas, argues that there is no historical support for Griffin‘s holding. It lacks foundation in the Constitution’s text, history, and logic. It should be reconsidered. (Concurrence, ¶78). Hagedorn acknowledges that as a lower court, SCOW must follow Griffin. But SCOW cannot do what Hoyle allegedly asks–expand Griffin to cover the DA’s comments in this case. (Concurrence, ¶81).
Dallet’s dissent punches holes in the argument that constitutional interpretation must be guided by the original, public meaning of the provision at issue. Originalism “allows its adherents to hide their lack of constraints behind a false patina of objectivity . . . taken to its logical conclusion, [originalism] would result in the radical rejection of long-settled constitutional principles.” (Dissent,¶106). Sounding an alarm, she explains how originalism would undermine significant criminal and civil constitutional rights that most people take for granted:
Indeed, one of the opinions the concurrence cites argues that the Sixth Amendment’s guarantee of counsel to indigent criminal defendants is at odds with the Constitution’s original public meaning. See Garza, 139 S. Ct. at 757 (Thomas, J., dissenting). That’s not all though. Brown v. Board of Education, same-sex marriage, virtually all rights of women and racial minorities, and any number of other fundamental rights are difficult, if not impossible, to justify on originalist grounds. See Chemerinsky, supra at 92-114. (Dissent,¶106).