State v. William Nielsen, 2001 WI App 192, PFR filed
For Nielsen: Waring R. Fincke
¶31. The privilege against self-incrimination is guaranteed by art. I, § 8, of the Wisconsin Constitution and by the Fifth Amendment to the United States Constitution. State v. Adams, 221 Wis. 2d 1, 7, 584 N.W.2d 695 (Ct. App. 1998). The use of a defendant’s silence for impeachment purposes has been long decided. It has been held improper for the State to comment upon a defendant’s choice to remain silent at or before trial. Id. at 7-8 (citing Miranda v. Arizona, 384 U.S. 436, 468 n.37 (1966) (defendant claiming privilege in face of accusation); Doyle v. Ohio, 426 U.S. 610, 619 (1976) (constitutional error to impeach a defendant with his or her post-arrest, post-Miranda silence)).
¶32. If, however, the defendant opens the door to government questioning by his own remarks about his post-arrest behavior or by defense counsel’s questioning, see Doyle, 426 U.S. at 619 n.11 (discussing prosecution’s permissible use of post-arrest silence to “challenge the defendant’s testimony as to his behavior following arrest”), the government may use the defendant’s silence for the limited purpose of impeaching his testimony. United States v. Gant, 17 F.3d 935, 941 (7th Cir. 1994). At the same time, it may not argue that the defendant’s silence is inconsistent with his claim of innocence. Id.
¶33. The test for determining if there has been an impermissible comment on a defendant’s right to remain silent is whether the language used was manifestly intended or was of such character that the jury would naturally and necessarily take it to be a comment on the defendant’s right to remain silent.United States v. Mora, 845 F.2d 233, 235 (10th Cir. 1988). The court must look at the context in which the statement was made in order to determine the manifest intention which prompted it and its natural and necessary impact on the jury. Id. Whether a defendant’s right to remain silent was violated is a question involving the application of constitutional principles to undisputed facts that we review de novo. See Adams, 221 Wis. 2d at 6.
¶36 … We conclude that Nielsen opened the door to government questioning by his counsel’s questioning, and the State was permitted to clarify that Nielsen had not answered all questions for the limited purpose of impeaching the inference that Nielsen had continued to actively deny the assault throughout the interview….