April 20, 2023 – A prosecutor who repeatedly used the term “uncontroverted” to refer to evidence in a case in which the defendant neither testified nor presented any witnesses did not violate the defendant’s Fifth Amendment right against self-incrimination, the Wisconsin Supreme Court has ruled.

In State v. Hoyle, 2023 WI 24 (March 31, 2023), the supreme court held (5-2) that the prosecutor used term “uncontroverted” to remind jurors that they could consider only the evidence presented during the trial.

Chief Justice Annette Ziegler wrote the majority opinion, joined by Justice Patience Roggensack, Justice Rebecca Bradley, Justice Brian Hagedorn, and Justice Jill Karofsky. Justice Hagedorn wrote a concurring opinion, which Justice R.G. Bradley joined. Justice Rebecca Dallet dissented, joined by Justice Ann Walsh Bradley.

Only Two Witnesses

In 2018, the Chippewa County District Attorney charged Tomas Jaymitchell Hoyle with two counts of second-degree sexual assault and two counts of second-degree sexual assault of a child less than 16 years of age.

Hoyle did not testify during the trial. The state’s main witness was Hannah, Hoyle’s alleged victim.

Hannah testified that Hoyle sexually assaulted her in the back seat of a car. When he took her home, Hannah said, Hoyle told her that “if anyone finds out about this, someone is going to end up dead.”

Hoyle presented no witnesses.

During his closing argument, the prosecutor argued repeatedly, over the objections of Hoyle’s lawyer, that Hannah’s testimony was “uncontroverted.” He also told the jury that they “heard no evidence disputing [Hannah’s] account of the sexual assault.”

The jury convicted Hoyle on both counts.

Court of Appeals Reverses

Hoyle appealed.

The Wisconsin Court of Appeals reversed the circuit court, holding that the prosecutor’s repeated use of the word “uncontroverted” to refer to the evidence was improper because the only person who could controvert the victim’s testimony was Hoyle.

The state appealed.

Three-part Test

Chief Justice Ziegler began her opinion for the majority by explaining that in Griffin v. California, 380 U.S. 609 (1965), the U.S. Supreme Court held that the Fifth Amendment privilege against self-incrimination entitles a defendant to not testify at trial without the jury drawing any adverse inference from his or her silence.

However, she noted, the Supreme Court has not set forth a test for determining whether a prosecutor’s comment: 1) constitutes comment on a defendant’s silence; and/or 2) is adverse.

After examining case law from federal circuit courts and the Wisconsin Court of Appeals, Ziegler concluded that a prosecutor violates Griffin only if a defendant can demonstrate each of the following:

• the prosecutor’s statement was manifestly intended to be, or of such character that the jury would necessarily take it to be, a comment on the failure of the defendant to testify;

• the prosecutor’s statement was manifestly intended to be, or of such character that the jury would necessarily take it to be, an adverse comment, meaning a comment that the defendant’s silence is evidence of guilt; and

• the prosecutor’s statement was not a fair response to a claim made by the defendant or his or her attorney.

‘Uncontroverted’ Properly Focused Jury

Chief Justice Ziegler concluded that the prosecutor’s repeated statements that the evidence against Hoyle was uncontroverted did not violate Griffin.

Ziegler pointed out that defense counsel, in his opening statement, told the jury the case came down to the credibility of the victim, and that the prosecutor referred to the victim’s testimony as “uncontroverted.”

“This context makes clear that the prosecutor’s description of Hannah’s testimony as ‘uncontroverted’ was entirely meant to focus the jury’s attention on what evidence it was permitted to consider,” Justice Ziegler wrote.

“The prosecutor’s description of the evidence as ‘uncontroverted’ was, in context, comment on the evidence the jury was permitted to consider, not on Hoyle’s silence.”

Concurrence: Bound by Griffin, but…

In his concurrence, Justice Hagedorn explained that the original meaning of the Fifth Amendment’s Self-Incrimination Clause was informed largely by the English experience with “ex officio” oaths that were used to persecute, among others, religious minorities, and was limited to a bar on forcing criminal defendants from testifying against themselves.

“The text of the amendment does not say anything about what a jury might permissibly infer from a failure to testify, or whether attorneys may comment upon the failure to testify,” Hagedorn wrote.

Hagedorn noted that at America’s founding, criminal defendants were not allowed to testify in their own trials. Consequently, he argued, history does not support Griffin’s holding that the Fifth Amendment’s Self-Incrimination Clause bars commenting on a criminal defendant’s failure to testify.

“Rather, Griffin appears aimed at fulfilling the ‘spirit’ of the Fifth Amendment by adding an additional layer of protection for defendants above and beyond the text.”

But because Griffin was Supreme Court precedent, Justice Hagedorn reasoned, the Wisconsin Supreme Court must apply it.

Dissent: Indirect Comment Violates Fifth Amendment

In her dissent, Justice Dallet argued that the prosecutor’s use of the term “uncontroverted” was an impermissible indirect comment on Hoyle’s decision not to testify.

She pointed out that the jury knew that only Hoyle and the victim could testify about what happened in the car.

“For that reason, repeatedly calling the victim’s testimony uncontroverted ‘impermissibly focus[ed] attention on the defendant’s decision not to testify,’ and violated Hoyle’s Fifth Amendment rights,” Dallet wrote.

Justice Dallet also argued that Hagedorn’s focus on the history of the privilege against self-incrimination was misplaced.

“It’s not clear what – if anything – the history of the Fifth Amendment can tell us about how its protections should apply today,” Dallet wrote.

“Our courts have thankfully moved a long way from the practices of the Star Chamber and its ex officio oath, and legislatures across the country eliminated most prohibitions on defendants testifying more than a century ago,” Dallet wrote.