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Self-Incrimination – Impeachment with Post-Miranda Silence – Distinction re: Substantive Use

State v. Caltone K. Cockrell, 2007 WI App 217, PFR filed
For Cockrell: Paul R. Nesson, Jr.


¶31      … (A)s long as the prosecutor does not ask the jury to make a direct inference of guilt from the defendant’s post-arrest silence, asking the jury to draw inferences that impeach the defendant’s volunteered testimony on that subject does not violate due process, even though the inferences, if accepted by the jury, might make it more likely it will find the defendant guilty. See Wulff, 200 Wis. 2d at 343-44.

¶32      In this case, the prosecutor wanted the jury to infer that Cockrell was not telling the truth as to why he did not tell the police about the man in the back seat. It is true that, if the jury accepted these inferences, it was more likely to decide Cockrell did not act in self-defense but was instead guilty of attempted homicide. However, we do not agree that this is the same as asking the jury to make a direct inference of guilt from Cockrell’s silence.

¶33      The due process inquiry under Doyle is whether the cross-examination of Cockrell or the challenged comments in closing argument were fundamentally unfair to Cockrell given his volunteered testimony on declining to talk to the police about the shooting and his reason for that. Balancing the defense and prosecution interests and applying “considerations of fairness within the context of the truth-seeking function of trials[,]” Mavrick, 601 F.2d at 933, we conclude the challenged cross-examination and closing argument were not fundamentally unfair.

The court also holds that failure to object to efficacy of the “limiting” instruction waived any right to raise it on appeal, ¶¶34-36.


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