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SCOW will decide whether DA improperly commented on defendant’s decision not to testify

State v. Tomas J. Hoyle, 2020AP1876-CR, petition for review of an unpublished opinion granted 9/14/22; case activity (including briefs)

Issue: (adapted from the State’s PFR):

The 5th Amendment prohibits a prosecutor from commenting  on defendant’s failure to to the stand. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). In a case where the defendant exercises his right not to testify, does the prosecution violate this prohibition by telling the jury that the victim’s account is “uncontroverted” and no evidence was offered to dispute it?

The State charged Hoyle with child sexual assault. Only the victim and the investigator testified at trial. Hoyle exercised his right to remain silent. The defense did not call any other witnesses. During closing arguments, the DA told the jury that it had to decide the case solely on the evidence; the victim’s account was uncontroverted; there was absolutely no evidence disputing it; and the jury “you heard nothing.”

As noted in our post on the court of appeals’ decision, to determine whether a prosecutor has crossed this constitutional line, a court applies a three-factor test established in State v. Jaimes, 2006 WI App 93, ¶21,  292 Wis. 2d 656, 715 N.W.2d 669. First, “the comment must constitute a reference to  the defendant’s failure to testify.” Second, “the comment must propose that the failure to testify demonstrates guilt.” Third, “the comment must not be a fair response to a defense argument.” Id(¶12).

The State asks SCOW to clarify Bies‘ interpretation of the first factor. In Bies, the defendant was tried for murder and robbery. He chose to remain silent and did not contest that the crimes had occurred. His defense was that intoxication negated his intent to commit the crimes. During closing arguments, the DA said that certain evidence was “uncontroverted.” Bies held that no 5th Amendment violation occurred because the prosecutor did not refer to an aspect of the case that the defendant contested, so it could not be construed as a comment on the defendant’s failure to testify.

Hoyle’s case is completely different. Hoyle was the only person who could have provided direct evidence controverting the alleged assault, and he expressly argued that the State failed to meet its burden of proof.

The State claims that Bies does not hold, and has never been interpreted to hold, that a DA can use the term “uncontroverted” only with respect to the part of a case that is not disputed. We await SCOW’s clarification.

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