Hoyle chose to remain silent at his trial for child sexual assault. During closing arguments, the DA repeatedly argued that the testimony from “Hannah” (the alleged victim) was “uncontroverted” and the jury “heard no evidence disputing her account of the sexual assault.” In a published decision, the court of appeals holds that the DA’s arguments violated Hoyle’s 5th Amendment rights.
The State may not comment–directly or indirectly–on a defendant’s exercise of his 5th Amendment right not to testify. Griffin v. California, 380 U.S. 609, 615 (1965); Bies v. State, 53 Wis. 2d 322, 325-26, 193 N.W.2d 46 (1972). To determine whether a DA has crossed the constitutional line, a court applies this test:
First, “the comment must constitute a reference to the defendant’s failure to testify.” State v. Jaimes, 2006 WI App 93, ¶21, 292 Wis. 2d 656, 715 N.W.2d 669. Second, “the comment must propose that the failure to testify demonstrates guilt.” Id. Third, “the comment must not be a fair response to a defense argument.” Id. Opinion, ¶14.
The court of appeals held that the DA’s comments satisfied the first factor. The DA’s repeated argument that the charged sexual assault was “uncontroverted” ignored the fact that Hoyle was innocent until proven guilty and suggested that his silence was evidence of his guilt. Given the nature of the allegations, the only person who could have controverted the alleged victim was Hoyle–the non-testifying defendant. Opinion, ¶19.
For similar reasons, the court of appeals found the second factor satisfied as well. “[T]he prosecutor specifically argued that the lack of evidence disputing Hannah’s testimony—which again, could have only come from Hoyle—demonstrated Hoyle’s guilt. ” Opinion, ¶20.
The State did not argue the third factor, so the court of appeals did not address it.
The State defended its use of the term “uncontroverted” based on Bies. In that case, the defendant was tried for murder and robbery and chose to remain silent. He did not contest that those crimes occurred. His defense was that his intoxication negated his intent to commit the crimes. During closing arguments, the DA observed that certain evidence was “uncontroverted.” Given that context, the DA’s comment was okay. Hoyle, in contrast, disputed the charged acts and expressly argued that the State failed to meet its burden of proving that the sexual assault occurred. Opinion, ¶18.