2023 WI 24
SUPREME COURT OF WISCONSIN
CASE NO.: 2020AP1876-CR
COMPLETE TITLE: State of Wisconsin,
Plaintiff-Respondent-Petitioner,
v.
Tomas Jaymitchell Hoyle,
Defendant-Appellant.
REVIEW OF DECISION OF THE COURT OF APPEALS
Reported at 402 Wis. 2d 308,
974 N.W.2d 893
(2022 – unpublished)
OPINION FILED: March 31, 2023
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: December 13, 2022
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Chippewa
JUDGE: James M. Isaacson
JUSTICES:
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and
KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring
opinion, in which REBECCA GRASSL BRADLEY, J., joined. DALLET,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J.,
joined.
NOT PARTICIPATING:
ATTORNEYS:
For the plaintiff-respondent-petitioner, there were briefs
filed by Jennifer L. Vandermeuse, assistant attorney general,
with whom on the briefs was Joshua L. Kaul, attorney general.
There was an oral argument by Jennifer L. Vandermeuse, assistant
attorney general.
For the defendant-appellant, there was a brief filed by
Thomas B. Aquino, assistant state public defender. There was an
oral argument by Thomas B. Aquino, assistant state public
defender.
2
2023 WI 24
NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2020AP1876-CR
(L.C. No. 2015CF1159)
STATE OF WISCONSIN : IN SUPREME COURT
State of Wisconsin,
Plaintiff-Respondent-Petitioner,
FILED
v. MAR 31, 2023
Tomas Jaymitchell Hoyle, Sheila T. Reiff
Clerk of Supreme Court
Defendant-Appellant.
ZIEGLER, C.J., delivered the majority opinion of the Court, in
which ROGGENSACK, REBECCA GRASSL BRADLEY, HAGEDORN, and
KAROFSKY, JJ., joined. HAGEDORN, J., filed a concurring
opinion, in which REBECCA GRASSL BRADLEY, J., joined. DALLET,
J., filed a dissenting opinion, in which ANN WALSH BRADLEY, J.,
joined.
REVIEW of a decision of the Court of Appeals. Reversed.
¶1 ANNETTE KINGSLAND ZIEGLER, C.J. This is a review of
an unpublished decision of the court of appeals, State v. Hoyle,
No. 2020AP1876-CR, unpublished slip op. (Wis. Ct. App. Apr. 26,
2022), reversing the Chippewa County circuit court's1 judgment of
conviction against Tomas Jaymitchell Hoyle for two counts each
of second-degree sexual assault and second-degree sexual assault
1 The Honorable James M. Isaacson presided.
No. 2020AP1876-CR
of a child, and also reversing the circuit court's order denying
Hoyle's motion for postconviction relief. We reverse.
¶2 Hoyle argues that he is entitled to a new trial
because the prosecutor at Hoyle's trial violated his Fifth
Amendment right against self-incrimination under Griffin v.
California, 380 U.S. 609 (1965), by adversely commenting on his
decision not to testify. According to Hoyle, the prosecutor
argued "that Hoyle should be convicted because the alleged
victim's testimony was 'uncontroverted'" and that this was a
comment on Hoyle's decision not to testify because "[o]nly Hoyle
could have contradicted [the alleged victim's] sexual assault
allegations."
¶3 We conclude that Hoyle is not entitled to
postconviction relief. The prosecutor at Hoyle's criminal trial
did not violate Hoyle's Fifth Amendment rights under Griffin
because the prosecutor did not comment on Hoyle's silence. The
prosecutor instead described the State's evidence as
"uncontroverted" to remind the jury that they could evaluate
only the evidence presented at trial and not speculate about
other possible evidence. Additionally, the jury likely would
not have thought only Hoyle could have controverted the State's
evidence because defense counsel explicitly identified other
kinds of evidence not presented at trial. In context, the
prosecutor's remarks that the State's evidence was
"uncontroverted" were neither "manifestly intended to be" nor
"of such character that the jury would naturally and necessarily
take [them] to be" adverse comments on Hoyle's silence.
2
No. 2020AP1876-CR
Morrison v. United States, 6 F.2d 809, 811 (8th Cir. 1925). The
prosecutor therefore did not comment on Hoyle's silence, and the
circuit court was correct to deny Hoyle's motion for
postconviction relief. We reverse the court of appeals.
I. FACTUAL BACKGROUND AND PROCEDURAL POSTURE
¶4 On March 14, 2017, Hannah,2 then a 15-year-old minor,
disclosed to her school resource officer, Officer Joseph Nelson
of the Chippewa Falls Police Department, that she was sexually
assaulted in February 2017. Officer Nelson emailed Investigator
Kari Szotkowski, Chippewa County Sheriff's Department, that same
day reporting the sexual assault. Investigator Szotkowski
interviewed Hannah at Hannah's school on March 15, during which
Hannah reported her account of the sexual assault but did not
say who assaulted her. Hannah later disclosed to Officer Nelson
in May 2017 that she was assaulted by Hoyle, who was a
stepbrother to one of Hannah's friends and 20 years old at the
time of the alleged assault. Hoyle was subsequently arrested
and charged with two counts each of second-degree sexual assault
contrary to Wis. Stat. § 940.225(2) (2021-22)3 and second-degree
sexual assault of a child less than 16 years of age contrary to
Wis. Stat. § 948.02(2).
¶5 The trial took place over two days in December, 2018.
According to pretrial filings, Hoyle did not plan to call any
2 "Hannah" is a pseudonym used in place of the victim's
name. See Wis. Stat. (Rule) § 809.86(4).
All subsequent references to the Wisconsin Statutes are to
3
the 2021-22 version unless otherwise indicated.
3
No. 2020AP1876-CR
witnesses during trial. Prior to the start of Hoyle's trial
while discussing motions in limine, the prosecutor asked the
circuit court if he would be permitted to refer to the State's
case as "uncontroverted" during his closing argument should
Hoyle invoke his right not to testify. The prosecutor argued,
So should the defendant not testify, I think the State
is allowed to argue that the evidence is
uncontroverted, meaning that you only have heard from
[Hannah]. That's not commenting upon the defense's
right to silence but commenting upon the evidence in
front of the jurors at that time. I can't say it's
uncontroverted because the defendant didn't testify,
but I can say that her testimony is uncontroverted and
that you haven't heard any testimony to the contrary.
The court granted the prosecutor's request over defense
counsel's objection.
¶6 The State presented two witnesses at trial: Hannah
and Investigator Szotkowski. Hannah testified that the day of
the assault she "had taken some Vicodin and drank some alcohol"
and that she "obviously was high" but "still had a sense of what
was going on." Hoyle drove up to Hannah while she was walking
to a friend's house and asked if she "wanted to hang out," to
which Hannah agreed. Hannah said that Hoyle "kept poking [her]
legs" during the drive. At one point, Hoyle drove down a dead-
end road and stopped in the middle of the road. Hannah exited
the car, and Hoyle "told [her] to get back into the car."
Hannah got into the "back seat passenger side" because she "was
scared" and "didn't want [Hoyle] touching [her] any more."
Hoyle then climbed into the back seat, pulled down Hannah's
pants and underwear, and sexually assaulted her. Hoyle drove
4
No. 2020AP1876-CR
Hannah back home, dropped her off at "the bar across the
street," and said to Hannah, "if anyone finds out about this,
someone is going to end up dead."
¶7 Investigator Szotkowski testified that she determined
the location of the sexual assault based on Hannah's
description. She otherwise had difficulty investigating because
she "didn't know who the suspect was" at the time.
¶8 Hoyle exercised his right under the Fifth Amendment
not to testify. The defense did not present any other
witnesses.
¶9 Before closing arguments, the court read instructions
to the jury. As relevant to this case, the court gave the
following standard jury instructions:
The burden of establishing every fact necessary
to constitute guilt is upon the State. Before you can
return a verdict of guilty, the evidence must satisfy
you beyond a reasonable doubt that the defendant is
guilty. If you can reconcile the evidence upon any
reasonable hypothesis consistent with the defendant's
innocence, you should do so and return a verdict of
not guilty. [Wis. JI——Criminal 140 (2019).]
. . . .
A reasonable doubt is not a doubt which is based
upon mere guesswork or speculation. . . . While it is
your duty to give the defendant the benefit of every
reasonable doubt, you are not to search for doubt.
You are to search for the truth. [Id.]
. . . .
. . . [E]vidence is the sworn testimony of
witnesses both on direct and cross-examination
regardless of who called that witness. . . . [T]he
evidence in this case to be considered is the
5
No. 2020AP1876-CR
testimony of witnesses only. [Wis. JI——Criminal 103
(2000).]
. . . .
. . . In weighing the evidence, you may take into
account matters of your own common knowledge and your
observations and experiences in the affairs of life.
[Wis. JI——Criminal 195 (2000).]
. . . .
It is the duty of the jury to scrutinize and to
weigh the testimony of witnesses and determine the
effect of the evidence as a whole. You are the sole
judges of the credibility, that is, the believability
of the witnesses and the weight to be given to their
testimony. In determining the credibility of each
witness and the weight you give to the testimony of
each witness, consider these factors:
Whether the witness has an interest or lack of
interest in the result of the trial; the witness'
conduct, appearance, and demeanor on the witness
stand; the clearness or lack of clearness of the
witness' recollections; the opportunity the witness
had for observing and for knowing the matters about
which she testified about; the reasonableness of the
witness' testimony; the apparent intelligence of the
witness; bias or prejudice, if any has been shown;
possible motives for falsifying testimony, and all
other facts and circumstances during a trial which
tend either to support or to discredit the testimony.
Then give to the testimony of each witness the weight
you believe it should receive. [Wis. JI——Criminal 300
(2000).]
. . . .
In this case the defendant has elected not to
testify. In a criminal case, he has the absolute
constitutional right not to testify. The defendant's
decision not to testify must not be considered by you
in any way and must not influence your verdict in any
manner. [Wis. JI——Criminal 315 (2001).]
6
No. 2020AP1876-CR
¶10 The prosecutor began his closing argument immediately
after the court finished reading the jury instructions. He
began by restating and emphasizing certain instructions:
[Y]ou are to decide this case solely, solely on the
evidence offered and received at the trial. What that
means is you're only to base it upon what you heard
yesterday when the evidence was coming in at trial.
You're not to speculate about other things that may be
out there. You're not to think about other things.
You're to focus solely on the evidence that was
presented to you yesterday in this trial.
In fact, in order to reemphasize that, it's
mentioned again in another instruction where it says,
you are to consider only the evidence received during
the trial. Once again, not to consider anything else.
You're supposed to just focus on what you heard
yesterday with the testimony. [Hannah's] testimony
that she gave here yesterday is uncontroverted. You
have heard no evidence disputing her account of that
sexual assault. You heard nothing. . . . You heard
her testify[, and] . . . [t]hat is what the testimony
is.
The prosecutor summarized Hannah's testimony and described it as
"uncontroverted" because "[t]here is absolutely no evidence
disputing her account of what occurred." He further explained
that the jury could not "speculate":
I can pretty much guarantee that the defense is going
to get up here and say, what about this? What about
this in the investigation? What about that in the
investigation? Why didn't they do this? Why didn't
they do that? Once again, the Judge instructed you,
and you need to read that in the jury instructions,
that you're not to base your decision, you're not to
base doubt on guesswork or speculation. In fact, the
Judge instructed you, you are not to search for doubt.
You are to search for the truth.
You are not to sit there and say, what if I had
this information, what if I had that information, what
7
No. 2020AP1876-CR
if this was different, what if that was different?
You're not to speculate. You're not to guess. You're
to focus on what you heard yesterday, and what you
heard yesterday was this young lady testifying about
how she was assaulted by this defendant. . . .
. . . None of that was controverted, meaning it
was all uncontroverted, meaning there was nothing
controverting her statements about what had
occurred . . . .
They will want you to speculate about what you
could know, what they think you should have known, but
it's not about speculation. It's about what you
heard. In this case, because you only heard from
[Hannah] about it, you didn't hear from any of her
friends or anyone else testifying about it, it all
comes down to her credibility.
He then argued that the jury should evaluate Hannah's testimony
based on their "common experiences of life" and that Hannah was
a credible witness based on her demeanor, lack of testimony
establishing a motive to lie, and the clarity of her
recollections. On rebuttal, the prosecutor told the jury,
You need to make the decision based upon the
uncontroverted testimony of what she says occurred.
They don't disagree it's uncontroverted. They just
say you should ask for more. It's not my job to give
you information I don't have. I'm not going to argue
and say this is why you don't have it or that is why
you don't have it. You don't have it. I will agree
to that, you don't have that additional information,
but the jury instruction says you are not to speculate
about that.
¶11 The jury found Hoyle guilty on all counts. The court
sentenced Hoyle to eight years of initial confinement and 10
years of extended supervision.
¶12 Hoyle filed a motion for postconviction relief on
August 11, 2020, arguing, among other things, that he should
8
No. 2020AP1876-CR
receive a new trial because "the [S]tate repeatedly stated in
its closing argument that the evidence is 'uncontroverted'" in
violation of Hoyle's right not to testify.4 The circuit court
orally denied Hoyle's motion during a hearing, concluding, "I
don't think that was a comment on the defendant's failure to
testify" because the prosecutor was arguing, "the only result
that could be reached from what the testimony was, if you
believed [Hannah], was that the defendant raped her." The
circuit court later issued a written order denying Hoyle's
motion for postconviction relief.
¶13 Hoyle appealed the circuit court's order, and the
court of appeals reversed. The court of appeals concluded,
"[T]he State's repeated argument that the evidence was
'uncontroverted' was improper under the circumstances of this
case, where the only person who could controvert the alleged
victim's testimony was Hoyle" and "thus violated Hoyle's Fifth
Amendment right not to testify at trial." Hoyle,
No. 2020AP1876-CR, ¶2.
¶14 The State petitioned this court for review, which we
granted.
II. STANDARD OF REVIEW
¶15 This case requires us to "determine whether a
defendant's Fifth Amendment privilege against compulsory
incrimination [has been] violated." State v. Ernst, 2005 WI
Hoyle raised six additional bases for postconviction
4
relief. None of these additional claims were raised before this
court.
9
No. 2020AP1876-CR
107, ¶11, 283 Wis. 2d 300,
699 N.W.2d 92. This involves "the
application of constitutional principles to facts," which we
review de novo as questions of law. State v. Spaeth,
2012 WI
95, ¶30,
343 Wis. 2d 220,
819 N.W.2d 769.
III. ANALYSIS
¶16 We begin with an overview of United States Supreme
Court cases developing the right against adverse comment on a
defendant's decision not to testify. We then proceed by
reviewing how the federal circuit courts of appeals and
Wisconsin courts have applied the Supreme Court's precedent in
the area of indirect comment on a defendant's silence. Finally,
we analyze Hoyle's claim that the prosecutor violated his rights
under Griffin by referring to the State's evidence as
"uncontroverted" and conclude that the prosecutor did not
comment on Hoyle's silence.
A. Text And United States Supreme Court Cases
¶17 Under the Fifth Amendment to the United States
Constitution, "No person . . . shall be compelled in any
criminal case to be a witness against himself." U.S. Const.
amend. V; accord Malloy v. Hogan, 378 U.S. 1 (1964)
(incorporating the Fifth Amendment against the states).
¶18 In Griffin, 380 U.S. 609, the United States Supreme
Court interpreted the Fifth Amendment as providing a
constitutional right for defendants to remain silent at trial
without the jury drawing an adverse inference from that silence.
The defendant in Griffin was on trial for first-degree murder
and invoked his right not to testify.
Id. at 609-10. The court
10
No. 2020AP1876-CR
instructed the jury, "As to any evidence or facts against him
which the defendant can reasonably be expected to deny or
explain . . . if he does not testify . . . the jury may take
that failure into consideration as tending to indicate the truth
of such evidence . . . ." Id. at 610. The prosecutor acted
accordingly in closing argument: "These things he has not seen
fit to take the stand and deny or explain"; "[the victim] is
dead, she can't tell you her side of the story. The defendant
won't."
Id. at 611.
¶19 The Supreme Court concluded both the court's and the
prosecutor's actions were unconstitutional, holding the Fifth
Amendment "forbids either comment by the prosecution on the
accused's silence or instructions by the court that such silence
is evidence of guilt." Id. at 614. In reaching this
conclusion, the Court first noted the federal statutory
prohibition against drawing an adverse inference from a
defendant's silence.
Id. at 612-13. It then reasoned,
If the words "fifth Amendment" are substituted for
"act" and for "statute" [in Wilson, which held that
adverse comment on silence was statutorily prohibited]
the spirit of the Self-Incrimination Clause is
reflected. For comment on the refusal to testify is a
remnant of the "inquisitorial system of criminal
justice," which the Fifth Amendment outlaws. It is a
penalty imposed by courts for exercising a
constitutional privilege. It cuts down on the
privilege by making its assertion costly.
Id. at 614 (citation and footnote omitted).
¶20 The Court clarified the rule against adverse comment
on a defendant's silence in Lakeside v. Oregon, 435 U.S. 333
11
No. 2020AP1876-CR
(1978). There, the Court held a trial court could instruct a
jury, over a defendant's objection, not to consider a
defendant's silence. Id. at 338. Examining its decision in
Griffin, the Court observed, "It is clear from even a cursory
review of the facts and the square holding of the Griffin case
that the Court was there concerned only with adverse comment,"
which is comment "that such silence is evidence of guilt."
Id.
at 338–39 (quoting Griffin,
380 U.S. at 615).
¶21 Accordingly, "[a]lthough Griffin can be read to
prohibit any direct reference to a defendant's failure to
testify," the Supreme Court "has declined to adopt such a broad
reading of Griffin." United States v. Wing, 104 F.3d 986, 990
(7th Cir. 1997) (citing Lakeside,
435 U.S. 333). The Griffin
rule is concerned only with adverse comment——that is, comment on
"the evil to which Griffin addressed itself: the invitation to
infer guilt from a defendant's decision not to take the stand."
Id.
¶22 The case before us does not involve a direct comment
on a defendant's silence but rather an alleged indirect comment.
"[T]he Supreme Court has never clearly established that a
prosecutor may not comment on the evidence in a way that
indirectly refers to the defendant's silence." Edwards v.
12
No. 2020AP1876-CR
Roper, 688 F.3d 449, 460 (8th Cir. 2012). However, it has come
close.5
¶23 In United States v. Hastings, 461 U.S. 499 (1983), a
prosecutor stated during closing argument, "Let's look at the
evidence the defendant[s] put on here for you so that we can put
that in perspective. I'm going to tell you what the
defendant[s] did not do. . . . The defendants at no time ever
challenged any of the rapes . . . ."
Id. at 502. Resolving the
case on harmless error, the Court did not decide whether the
prosecutor's remarks constituted adverse comments on the
defendant's silence.
Id. at 509. In a concurring opinion,
Justice Stevens took the view that there was no constitutional
error because, "[i]n reviewing the evidence adduced at the 5-day
trial, the prosecutor identified the weaknesses in the
defendants' presentations and invited inferences from the main
focus of the evidence presented by the five defendants."
Id. at
514 (Stevens, J., concurring). In other words, Justice Stevens
explained that the prosecutor's comments were not improper
because "the protective shield of the Fifth Amendment should
The Supreme Court addressed a factual scenario similar to
5
this case in Lockett v. Ohio, 438 U.S. 586 (1978). In Lockett,
the Court "quickly dismissed the argument that the prosecutor
had violated the defendant's right to remain silent when he
repeatedly remarked that the evidence was uncontradicted."
United States v. Robinson,
485 U.S. 25, 33 (1988) (citing
Lockett,
438 U.S. 586). However, the Court "did not need to
decide whether such comment was generally improper, because in
that case 'Lockett's own counsel had clearly focused the jury's
attention on her silence.'"
Id. (quoting Lockett,
438 U.S. at
595). Hoyle's trial counsel did not make any similar statement
in this case.
13
No. 2020AP1876-CR
[not] be converted into a sword that cuts back on the area of
legitimate comment by the prosecutor on the weaknesses in the
defense case."6 Id. at 515 (Stevens, J., concurring).
¶24 Though these cases make clear that the Griffin rule
prohibits adverse comment on a defendant's silence, the Supreme
Court has not established a framework for deciding if a
statement is a comment on a defendant's silence and whether such
comment is adverse.
B. Federal Circuit Courts Of Appeals And Wisconsin Cases
¶25 The prevailing standard among the federal circuit
courts of appeals for determining whether a prosecutor violates
the Fifth Amendment by adversely commenting on a defendant's
silence first appeared in the Eighth Circuit's decision in
Morrison, 6 F.2d 809. Morrison did not analyze the Fifth
Amendment but rather the federal statutory prohibition against
adverse comment on a defendant's silence. See
id. at 811
(citing Act of March 16, 1878, ch. 37,
20 Stat. 30 (codified at
18 U.S.C. § 3481)). The prosecutor made the following comments
to the jury in closing argument:
6 The Supreme Court later favorably cited Justice Stevens'
Hastings concurrence in Robinson, 485 U.S. 25. That case
involved a prosecutor's comment on a defendant's silence in
response to defense counsel's assertion that the government did
not permit the defendant to explain his side of the story.
485
U.S. at 27-28. The Court held that the prosecutor's comments
did not violate the Fifth Amendment, explaining that in some
cases "the prosecutor's reference to the defendant's opportunity
to testify is a fair response to a claim made by defendant or
his counsel."
Id. at 32.
14
No. 2020AP1876-CR
While you are the sole judges of the facts in the
case, you would not be at liberty, of course, to
arbitrarily disregard or reject testimony in the case,
and especially where it is not contradicted, unless in
the consideration of that testimony in some way you
find it necessary in the performance of your duty to
discredit or reject it. Then, of course, you should
give it the weight and consideration you think it
should receive at your hands.
Id. (emphasis added). The Eighth Circuit first concluded, "It
is clear that this language contained no direct comment on the
failure of accused to testify."
Id. The court then considered
whether it was an "indirect comment" using the following
test: "Was the language used manifestly intended to be, or was
it of such character that the jury would naturally and
necessarily take it to be a comment on the failure of the
accused to testify?"
Id. (emphases added). Employing this
test, the court concluded the prosecutor did not comment on the
defendant's silence because "[t]estimony by the defendant was
not the only method of contradicting the story told by the
government's witnesses, if untrue."
Id. The court also noted,
"Comment by court and counsel that certain testimony is
uncontradicted is common, oftentimes helpful, and very generally
held to be without error."
Id. (collecting sources).
¶26 Since the Eighth Circuit's decision in Morrison, every
federal circuit court has applied a substantially similar
version of this test in Fifth Amendment comment-on-silence
15
No. 2020AP1876-CR
cases.7 The Wisconsin Court of Appeals likewise has applied the
Morrison test. It first did so in State v. Johnson, 121
Wis. 2d 237,
358 N.W.2d 824 (Ct. App. 1984), where a pro se
defendant delivered an opening statement to the jury but did not
testify.
Id. at 242. The prosecutor cautioned the jury that
the defendant's "statements were not evidence and were not given
under oath or subject to cross-examination."
Id. The court of
appeals cited the Morrison formulation as the "test for
determining whether remarks are directed to a defendant's
failure to testify."
Id. at 246 (quoting Bontempo v. Fenton,
692 F.2d 954, 959 (3d Cir. 1982)). The court concluded the
prosecutor did not indirectly comment on the defendant's failure
to testify, reasoning,
While the prosecutor's remarks might have
prompted the jury to recall and reflect upon [the
defendant's] failure to testify, we do not conclude
that the remarks highlighted such a failure to
testify. The remarks were directed at the manner in
which the jury should consider the opening statement
and did not address [the defendant's] failure to take
the stand. . . . [T]hese remarks were not manifestly
intended or of such a character that the jury would
7 See, e.g., Taylor v. Medeiros, 983 F.3d 566, 576 (1st Cir.
2020); United States v. Daugerdas,
837 F.3d 212, 227 (2d Cir.
2016); United States v. Savage,
970 F.3d 217, 308 (3d Cir.
2020); United States v. Rand,
835 F.3d 451, 466 (4th Cir. 2016);
United States v. Perry,
35 F.4th 293, 341 (5th Cir. 2022);
United States v. Gonzalez,
512 F.3d 285, 292-93 (6th Cir. 2008);
United States v. Phillips,
745 F.3d 829, 834 (7th Cir. 2014);
United States v. LaFontaine,
847 F.3d 974, 979 (8th Cir. 2017);
United States v. Mikhel,
889 F.3d 1003, 1060 (9th Cir. 2018);
United States v. Christy,
916 F.3d 814, 830 (10th Cir. 2019);
United States v. Hano,
922 F.3d 1272, 1295 (11th Cir. 2019);
United States v. Brown,
508 F.3d 1066, 1071 (D.C. Cir. 2007).
16
No. 2020AP1876-CR
naturally and necessarily take them to be a comment on
the failure of the accused to testify.
Id. at 248.
¶27 The court of appeals later applied the Morrison test
again in State v. Jaimes, 2006 WI App 93,
292 Wis. 2d 656,
715
N.W.2d 669. There, a prosecutor commented that other alleged
collaborators were not "going to walk into court . . . and waive
[their] Fifth Amendment rights . . . . My God, they have the
same rights that [the defendant] does." Id., ¶22. The court of
appeals, based on United States Supreme Court precedent,
identified three factors which "must be present" to demonstrate
a Griffin violation: "(1) the comment must constitute a
reference to the defendant's failure to testify; (2) the comment
must propose that the failure to testify demonstrates guilt; and
(3) the comment must not be a fair response to a defense
argument." Id., ¶21. The court first concluded under the
Morrison test that this was a comment on the defendant's
decision not to testify, but it nonetheless concluded the
prosecutor's statement was not improper because it was not
"adverse"——"the prosecutor did not state or intimate that [the
defendant's] failure to testify indicated guilt."8 Id., ¶23.
Though it is possible that the jury could have interpreted the
prosecutor's comment in an adverse manner, the court of appeals
recognized that mere possibility is not enough: "[A] court
The court of appeals also concluded that the prosecutor's
8
comment was "a fair response to a defense argument" regarding
why the alleged collaborators did not testify. State v. Jaimes,
2006 WI App 93, ¶24,
292 Wis. 2d 656,
715 N.W.2d 669.
17
No. 2020AP1876-CR
should not lightly infer that a prosecutor intends an ambiguous
remark to have its most damaging meaning or that a jury, sitting
through lengthy exhortation, will draw that meaning from the
plethora of less damaging interpretations." Id., ¶23 (quoting
Donnelly v. DeChristoforo,
416 U.S. 637, 647 (1974)).
¶28 Accordingly, the mere possibility that a jury could
understand a prosecutor as adversely commenting on a defendant's
silence does not demonstrate a violation of Griffin. See id.
Rather, the prosecutor's language must have been "manifestly
intended to be" or was "of such character that the jury would
naturally and necessarily take it to be" an adverse comment on
the defendant's silence for there to be a Griffin violation.
Morrison,
6 F.2d at 811 (emphases added); see also Clark v.
Lashbrook,
906 F.3d 660, 665 (7th Cir. 2018) (rejecting the
argument that a prosecutor violated Griffin because it
"assumes . . . that the prosecution's statement is only
susceptible to one meaning"); United States v. Rand,
835 F.3d
451, 466 (4th Cir. 2016) (holding there was no Griffin violation
because, though the jury could understand the prosecutor as
commenting on the defendant's silence, this was not "the
'necessar[y]' conclusion the jury would draw"); United States v.
LaFontaine,
847 F.3d 974, 980 (8th Cir. 2017) (emphasis added)
(holding "the jury would not have necessarily understood the
government's statement as an attempt to call attention to [the
defendant's] failure to testify").
¶29 Based on the Supreme Court's precedent and the test
from Morrison, unanimously adopted by all federal circuits and
18
No. 2020AP1876-CR
applied by the Wisconsin Court of Appeals, we hold that three
elements must be present for a prosecutor to violate
Griffin: First, the prosecutor's language must have been
"manifestly intended to be" or was "of such character that the
jury would naturally and necessarily take it to be" a "comment
on the failure of the [defendant] to testify." Morrison, 6 F.2d
at 811; Griffin,
380 U.S. at 611. Second, the prosecutor's
language must also have been "manifestly intended to be" or was
"of such character that the jury would naturally and necessarily
take it to be" "adverse," meaning comment "that such silence is
evidence of guilt." Morrison,
6 F.2d at 811; Lakeside, 435 U.S.
at 338–39 (quoting Griffin,
380 U.S. at 615); Donnelly,
416 U.S.
at 647. Finally, the prosecutor's comments must not have been
"a fair response to a claim made by defendant or his counsel."
United States v. Robinson,
485 U.S. 25, 32 (1988).
C. Comments That Evidence Is "Uncontroverted."
¶30 Hoyle claims that the prosecutor in this case violated
Griffin by repeatedly describing the State's evidence as
"uncontroverted"9 during closing argument. We conclude that the
prosecutor's comments, taken in context, were not comments on
Hoyle's silence and therefore did not violate Griffin. Because
9 The prosecutor in this case used the term "uncontroverted"
during his closing arguments. Though most cases have reviewed
prosecutors' use of "uncontradicted" instead, the terms
"'uncontradicted,' 'undenied,' 'unrebutted,' 'undisputed,'
'unchallenged,' [and] 'uncontroverted'" are often treated the
same. United States v. McClellan, 165 F.3d 535, 548 (7th Cir.
1999).
19
No. 2020AP1876-CR
we conclude that the prosecutor did not comment on Hoyle's
silence, there is no need for us to analyze whether such comment
was adverse or a fair response to a defense argument.
¶31 We first note that there is no per se rule that a
prosecutor's description of evidence as "uncontroverted" is a
comment on a defendant's silence. "Generally, it is not
improper for the prosecuting attorney to remark that testimony
for the prosecution is unexplained or uncontradicted, especially
[as here] where the jury is instructed to disregard such comment
as bearing on the accused's failure to testify." 23A C.J.S.
Criminal Procedure & Rights of the Accused § 1762 (2022)
(footnote omitted). It is notable that the Eighth Circuit in
Morrison——the case that first announced the test for an indirect
comment on a defendant's failure to testify——approved of a
prosecutor's comment that testimony was "not contradicted."
Morrison, 6 F.2d at 811. It reasoned that the "[t]estimony by
the defendant was not the only method of contradicting the story
told by the government's witnesses, if untrue," and noted,
"[c]omment by court and counsel that certain testimony is
uncontradicted is common, oftentimes helpful, and very generally
held to be without error."
Id. Similarly, we recognized in
Bies v. State,
53 Wis. 2d 322, 48-49,
193 N.W.2d 47 (1972),
"that it is proper for the district attorney to point out
generally that no evidence has been introduced to show the
innocence of the defendant." A prosecutor may refer to evidence
as "uncontroverted" when the comment was neither "manifestly
intended to be" nor was "of such character that the jury would
20
No. 2020AP1876-CR
naturally and necessarily take it to be" a comment on the
defendant's silence. Morrison, 6 F.2d at 811.
¶32 Some courts have held that a prosecutor's statement
that evidence is "uncontroverted" is a comment on a defendant's
silence "if the only person who could have contradicted, denied,
rebutted or disputed the government's evidence was the defendant
himself." United States v. Cotnam, 88 F.3d 487, 497 (7th Cir.
1996). For example, the Seventh Circuit in Cotnam concluded
that a prosecutor's description of testimony as "uncontroverted"
was manifestly intended as a comment on the defendant's silence
because the prosecutor focused attention on the defendant by
asking a witness, "When these discussions were taking place
between the defendant and yourself, did you keep the discussions
basically to yourself or were other people around the house?"
Id. at 499. Similarly, in United States v. Triplett,
195 F.3d
990 (8th Cir. 1999), the Eighth Circuit concluded a prosecutor's
statement, "What you didn't hear was evidence that the defendant
didn't possess the drugs," was a comment on the defendant's
silence "because, according to the government's own theory of
the case, no one other than Triplett himself could have
testified about his possession of the drugs. Triplett 'alone
had the information to do so.'"
Id. at 995 (quoting Sidebottom
v. Delo,
46 F.3d 744, 759 (8th Cir. 1995)).
¶33 Analyzing the prosecutor's remarks during Hoyle's
trial in context reveals that his statements that the State's
evidence was "uncontroverted" were neither "manifestly intended
to be" nor "of such character that the jury would naturally and
21
No. 2020AP1876-CR
necessarily take [them] to be" comments on the defendant's
silence. Morrison, 6 F.2d at 811.
¶34 The main issue at Hoyle's trial was the credibility of
the State's witnesses. Defense counsel began his opening
statement by noting, "There is no burden on the defense to put
witnesses up. There is no burden on the defense to provide
testimony. The State has to provide you with every single thing
that they're alleging." He told the jury, "you will not be
given any scientific, physical, or medical evidence that
connects Mr. Hoyle to [Hannah] whatsoever. You will not be
given any corroborating witnesses in this case. . . . What that
comes down to is you have to determine [Hannah's] credibility."
¶35 During the State's closing argument, the prosecutor
anticipated defense counsel would argue reasonable doubt based
on a lack of corroborating evidence and chose to lean on the
jury instructions. The prosecutor made all statements that
Hannah's testimony was "uncontroverted" in the context of
explaining to the jury what evidence it was permitted to
consider. The prosecutor reminded the jury, "the judge
instructed you that you are to decide this case solely, solely
on the evidence offered and received at the trial. . . . You're
not to speculate about other things that may be out there."
"You're supposed to just focus on what you heard yesterday with
the testimony. [Hannah's] testimony that she gave here
yesterday is uncontroverted." The prosecutor then recounted
Hannah's testimony and said, "All of that is uncontroverted."
He further explained, "There is absolutely no evidence disputing
22
No. 2020AP1876-CR
her account of what occurred. I can pretty much guarantee that
the defense is going to get up here and say, what about
this? . . . You're not to speculate. You're not to guess.
You're to focus on what you heard yesterday . . . ." One
portion summarizes his argument particularly well:
They will want you to speculate about what you
could know, what they think you should have known, but
it's not about speculation. It's about what you
heard. In this case, because you only heard from
[Hannah] about it, you didn't hear from any of her
friends or anyone else testifying about it, it all
comes down to her credibility.
¶36 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. The jury could consider only whether
the evidence presented by the State was credible, and that
evidence was "uncontroverted," meaning there was no contrary
evidence for the jury to also evaluate. The jury could not
"speculate" that there was some other evidence not presented
that might exonerate Hoyle. They were to focus solely on
whether the State's witnesses were credible. The prosecutor
never argued that the lack of a defense case made the State's
witnesses more credible. He instead walked through the court's
instruction on credibility and told the jury to evaluate the
testimony they heard based on their "own experiences in life";
"the victim's conduct, appearance, and demeanor"; "the clearness
or lack of clearness of her recollection"; "[t]he reasonableness
of her testimony"; "[t]he apparent intelligence of the witness";
23
No. 2020AP1876-CR
and "possible motives for falsifying testimony." 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.
¶37 It is also not the case that "the only person who
could have contradicted, denied, rebutted or disputed the
government's evidence was the defendant himself" and, therefore,
the jury would have "naturally and necessarily" understood the
prosecutor as commenting on Hoyle's silence. Cotnam, 88 F.3d at
497. It is possible that other evidence might exist that would
controvert the State's witnesses. In fact, defense counsel
identified several types of evidence that, if presented, might
controvert them. Defense counsel told the jury: "We heard from
the investigator yesterday. She did not go talk to [Hannah's]
mother at all. That's important. . . . What was her demeanor
when she came back?" "We heard that [Hannah] also lived with
her stepfather and her two sisters." "[Hannah] tells us that
she was going to go and see a friend. . . . That avenue is
ignored." "We heard that the police never went to canvas the
neighborhood." "We heard from [Hannah] that she was dropped off
at this gas station or bar. The investigator says she had never
went to those to find out if they had surveillance . . . ." "I
think we all agree when two people engage in sex, their bodies
are touching. There is going to be some sort of physical
evidence . . . . We know that she didn't go through a medical
24
No. 2020AP1876-CR
evaluation or physical evaluation." It is possible that some of
this evidence could have controverted the State's witnesses.10
¶38 Read in context, the prosecutor described the evidence
as "uncontroverted" in order to keep the jury from speculating
about any other evidence, including the evidence defense counsel
mentioned in his opening statement and closing argument, and to
instead focus on whether the State's witnesses were credible.
He argued that defense counsel was asking the jury to speculate
about other evidence, which the jury could not do. Even if it
is possible that the jury could have understood the prosecutor
as commenting on Hoyle's decision not to testify, the jury would
not have "necessarily" done so, and we "should not lightly
infer" that the jury would have drawn the "most damaging
meaning" from the prosecutor's statements.11 Jaimes, 292
Wis. 2d 656, ¶23 (quoting Donnelly,
416 U.S. at 647).
We consider defense counsel's argument in this case only
10
because it provides context as to how the jury would understand
the prosecutor's argument, not because the prosecutor's argument
was a "fair response to a defense argument." Jaimes, 292
Wis. 2d 656, ¶21.
Assuming arguendo that the jury would have naturally and
11
necessarily understood the prosecutor to be commenting on
Hoyle's silence, there would still be no error. The argument
was never adverse because the prosecutor never asked or
intimated that the jury should interpret Hoyle's silence as an
admission of guilt. Had the prosecutor commented on Hoyle's
silence——which he did not——such comment only directed the jury
away from speculation regarding the evidence they did not hear
and toward the evidence they did hear. Any mere possibility
that the jury could instead have made the prohibited inference
is insufficient.
25
No. 2020AP1876-CR
¶39 We therefore conclude the prosecutor did not violate
Griffin because, taking the prosecutor's remarks in context, the
description of the State's evidence as "uncontroverted" was
neither "manifestly intended to be" nor "of such character that
the jury would naturally and necessarily take [them] to be" a
comment on Hoyle's silence. Morrison, 6 F.2d at 811. Because
we conclude the prosecutor did not comment at all on Hoyle's
silence, it is unnecessary for us to analyze whether such
comment "propose[d] that the failure to testify demonstrates
guilt" or whether it was a "fair response to a defense
argument." Jaimes,
292 Wis. 2d 656, ¶21.
¶40 Because we conclude the prosecution's description of
the evidence as "uncontroverted" was not an error under Griffin,
there is no need for us to engage in a harmless error analysis.
See Chapman v. California, 386 U.S. 18, 22 (1967).
IV. CONCLUSION
¶41 Hoyle argues that he is entitled to a new trial
because the prosecutor at Hoyle's trial violated his Fifth
Amendment right against self-incrimination under Griffin by
adversely commenting on his decision not to testify. According
to Hoyle, the prosecutor argued "that Hoyle should be convicted
because the alleged victim's testimony was 'uncontroverted'" and
that this was a comment on Hoyle's decision not to testify
because "[o]nly Hoyle could have contradicted [the alleged
victim's] sexual assault allegations."
¶42 We conclude that Hoyle is not entitled to
postconviction relief. The prosecutor at Hoyle's criminal trial
26
No. 2020AP1876-CR
did not violate his Fifth Amendment rights under Griffin because
the prosecutor did not comment on Hoyle's silence. The
prosecutor instead described the State's evidence as
"uncontroverted" to remind the jury that they could evaluate
only the evidence presented at trial and not speculate about
other possible evidence. Additionally, the jury likely would
not have thought only Hoyle could have controverted the State's
evidence because defense counsel explicitly identified other
kinds of evidence not presented at trial. In context, the
prosecutor's remarks that the State's evidence was
"uncontroverted" were neither "manifestly intended to be" nor
"of such character that the jury would naturally and necessarily
take [them] to be" adverse comments on Hoyle's silence.
Morrison, 6 F.2d at 811. The prosecutor therefore did not
comment on Hoyle's silence, and the circuit court was correct to
deny Hoyle's motion for postconviction relief. We reverse the
court of appeals.
By the Court.—The decision of the court of appeals is
reversed.
27
No. 2020AP1876-CR.bh
¶43 BRIAN HAGEDORN, J. (concurring). The Fifth
Amendment to the United States Constitution provides, "No person
shall be . . . compelled in any criminal case to be a witness
against himself." U.S. Const. amend. V. In Griffin v.
California, the United States Supreme Court arguably went beyond
the original meaning of this clause and held that it forbids
"comment by the prosecution on the accused's silence." 380
U.S. 609, 615 (1965). Hoyle's claim before us is premised on
the Fifth Amendment alone; no argument is made under the
Wisconsin Constitution. We are therefore duty-bound to apply
the precedent of the United States Supreme Court. The majority
opinion does so, and I join it.
¶44 I write separately, however, to discuss the original
meaning of the Self-Incrimination Clause of the Fifth Amendment,
and to consider how that meaning might inform our approach in
cases such as this. The short story is that the right to not
accuse oneself was widely understood to be one of our natural,
God-given, inalienable rights. And our founders were cognizant
of the historical abuse of this right during the Inquisition and
later by ecclesiastical and English prerogative courts. Little
to nothing in the historical record suggests that this right
protected those accused of crimes——who were not even allowed to
testify in their own defense at the time——against comments on
and adverse inferences from their decision not to testify.
¶45 So how did Griffin arise? In brief, criminal trials
in America evolved to give those accused of crimes the statutory
right to testify. And as jurisdictions moved in this direction,
1
No. 2020AP1876-CR.bh
some states and the federal government enacted laws that
protected defendants against adverse inferences from the
decision not to testify——although this policy choice was not
universal. Soon enough, a body of cases interpreting and
applying these principles arose, yielding Griffin-type rules
rooted in both statute and common law. As we shall see, Griffin
then incorporated this body of law at least in part and rooted
it in the Fifth Amendment.
¶46 This history reveals, at the very least, strong
arguments that Griffin and its progeny go beyond the original
meaning of the Self-Incrimination Clause of the Fifth Amendment.
Given this, how should courts that must apply Griffin respond
when faced with cases asking us to extend precedent that has a
weak foundation in the original meaning of the Constitution? In
my view, we should tread cautiously. Where possible, we should
aim to "resolve questions about the scope of those precedents in
light of and in the direction of the constitutional text and
constitutional history." Free Enter. Fund v. Public Co. Acct.
Oversight Bd., 537 F.3d 667, 698 (D.C. Cir. 2008) (Kavanaugh,
J., dissenting). Being mindful of the text and history of the
Fifth Amendment provides further support to the majority's
decision not to extend Griffin to the facts of the case before
us. For these reasons, I join the majority opinion and
respectfully concur.
2
No. 2020AP1876-CR.bh
I. GRIFFIN & THE SELF-INCRIMINATION CLAUSE
A. Nemo Tenetur & the Ex Officio Oath
¶47 In the twelfth century, Bolognese monk Gratian
authored the Decretum——a compilation of the body of Catholic
rules and pronouncements that had circulated in collections of
"canons." J.H. Baker, An Introduction to English Legal History
110 (2d ed. 1979). The Decretum systematized these canons "in
accordance with a hierarchical scheme of authority with the pope
at the earthly summit." Id. Study of "Canon law became all the
rage" as European universities picked it up, and a new system of
courts applying these canons——known as ecclesiastical courts——
soon developed.
Id.
¶48 We begin the story of the Fifth Amendment's Self-
Incrimination Clause here because one of the enduring maxims
recognized in canon law was known in Latin as nemo tenetur
prodere seipsum——that is, "No one is bound to betray oneself."
Richard H. Helmholz, Origins of the Privilege against Self-
Incrimination: The Role of the European Ius Commune, 65 N.Y.U.
L. Rev. 962, 962 (1990). The maxim's origins are a bit of a
mystery, but by the Middle Ages it was widely referenced and
widely accepted.1 Leonard W. Levy, Origins of the Fifth
1 A prominent fourth-century Church Father, St. John
Chrysostom, referenced the idea when discussing St. Paul's
letter to the Hebrews. Richard H. Helmholz, Origins of the
Privilege against Self-Incrimination: The Role of the European
Ius Commune, 65 N.Y.U. L. Rev. 962, 982 (1990). St. Augustine
did as well around the same time. Leonard W. Levy, Origins of
the Fifth Amendment and its Critics,
19 Cardozo L. Rev. 821, 831
(1997) [hereinafter Levy, Critics]. The maxim made more
concrete appearances as a legal concept during the Middle Ages,
first in Gratian's Decretum (twelfth century) and then in the
3
No. 2020AP1876-CR.bh
Amendment and its Critics, 19 Cardozo L. Rev. 821, 831 (1997).
The theological driver behind this principle was that "men and
women should confess their sins to God, but they should not be
compelled to make their crimes known to anyone else." Helmholz,
supra at 982. Eventually, the maxim would mean much more as
government power was seen as transgressing its command.
¶49 That brings us to the Inquisition——a period during
early medieval times in which the Catholic Church sought to
protect itself from widespread heresy. Leonard W. Levy, Origins
of the Fifth Amendment 20-21 (Oxford University Press 1968)
[hereinafter Levy, Origins]. While the ancient maxim against
self-betrayal was accepted as such, it had its limits. St.
Thomas Aquinas reflected and reinforced the thinking at the time
that in order to protect the theological purity of the church,
"truthful answers to incriminating questions" must be demanded,
and those embracing heresy should be put to death. Id. at 21.
Even torture was an authorized tool to root out heresy. Id.
¶50 In 1215, Pope Innocent III remodeled the criminal
procedures of canon law, permitting three modes of prosecution.
Id. at 22. The first was accusatio——accusation from a private
person. Id. This mode came with a catch; it exposed the
accuser to punishment if his prosecution failed. Id. The
second was denunciatio——a private accusation allowing "the
private accuser to avoid the danger and burden of accusatio."
Id. at 22-23. In denunciatio the judge proceeded "ex officio"——
glossa ordinaria to the Decretals of Pope Gregory IX (thirteenth
century). Helmholz, supra at 967; Levy, Critics, supra at 831.
4
No. 2020AP1876-CR.bh
"by virtue of his office"——and became a party to the suit,
conducting the prosecution for the secret accuser. Id. at 23.
The third was inquisitio——a mode "by which the judge combined in
his person all roles." Id. He sat as accuser, prosecutor,
judge, and jury. Id.
¶51 The common procedure employed by ecclesiastical
courts, by which they implemented these types of prosecution,
was the oath de veritate dicenda. Id. This oath required a
party to swear to tell the truth to all questions that might be
asked. Id. The oath, however, could become an "an inescapable
trap" because an accused had to either take the oath (and risk
being condemned for perjury if the court didn't believe the
answers) or be condemned as guilty for refusing to answer.
Id. at 23-24. As such, it operated in all respects as a self-
incriminatory oath. Id. at 24. And because the oath took place
during inquisitorial procedures in which the judge operated ex
officio, the oath became known as the ex officio oath. Id.
¶52 By the early fourteenth century, English monarchs had
created the king's council, a political body made up of the most
powerful state officers, nobles, bishops, and judges. Id. at
49. This council eventually "developed into the House of Lords
and the central courts of the common law"——"the Court of Common
Pleas (civil) and the Court of King's Bench (criminal)." Id.
But it also spun off what were called conciliar or prerogative
courts, supplementing the general jurisdiction of the other
courts at the time. Baker, supra at 101. The original
justification for the creation of these courts "was that
5
No. 2020AP1876-CR.bh
extraordinary action by the king and his magnates offered the
only escape from the kind of undue influence which could corrupt
sheriffs and juries." Id.
¶53 Because many of the chancellors serving on the king's
council were assisted by bishops and doctors of canon law, its
procedures largely emulated those used in the ecclesiastical
courts. Levy, Origins, supra at 50. For example, they had no
juries. Id. The common criminal procedure involved secret
accusations by informers (called an "information" or
"suggestion") instead of the typical grand jury process of the
common law. Id. After the court commanded attendance of a
person through a writ of citation, it would require them to take
the ex officio oath. Id. "The defendant was required to swear
the oath and then was confronted with a series of
interrogatories which were based on the information obtained by
suggestions and the examination of witnesses." Id. at 51. "Any
discrepancies or contradictions in his answers were used against
him in an effort to break him down and force a confession of
guilt." Id.
¶54 The prerogative courts changed dramatically during the
Elizabethan (1558-1603) and early Stuart (1603-1640s) periods.
John H. Langbein, The Historical Origins of the Privilege
Against Self-Incrimination at Common Law, 92 Mich. L. Rev. 1047,
1073 (1994). As those monarchies began imposing Anglican forms
of worship on the British people, they enlarged the jurisdiction
of the prerogative courts to "suppress religious and political
heterodoxy." United States v. Gecas,
120 F.3d 1419, 1436 (11th
6
No. 2020AP1876-CR.bh
Cir. 1997). The oath became "especially problematic for
religious dissenters, as they were 'typically guilty of the
nonconformist religious practices for which they were being
investigated.'" In re Flint Water Cases, 53 F.4th 176, 214 (6th
Cir. 2022) (Thapar, J., concurring in part) (quoting another
source). "Anyone who refused this 'inquisitional oath' could be
held in contempt, imprisoned, and even tortured."
Id. (quoting
another source); Langbein, supra at 1073.
¶55 So, by the sixteenth and seventeenth centuries, both
the prerogative courts and ecclesiastical courts used the ex
officio oath to impose their political and religious will upon
the people. Many pushed back and resented what they saw as a
grand abuse of power. Levy, Origins, supra at 268-69. The ex
officio oath, they argued, violated the laws of God, drawing
upon the ancient principle that no one should be forced to
accuse oneself.2 Helmholz, supra at 967-68.
¶56 In 1637, tensions boiled over. Levy, Origins, supra
at 271-72. That year, the Star Chamber, probably the most well-known of the prerogative courts, brought charges against English
activist John Lilburne for shipping seditious books into England
from Holland (among other charges). Id. at 273. The Star
Chamber found him guilty of contempt for refusing to take the
oath. Lilburne's Case, 3 How. St. Tr. 1315 (Star Chamber 1637).
He condemned the oath as "against the law of God; for that law
In addition to the nemo tenetur maxim, some historians
2
also point to the "rights of conscience" as an additional basis
for rejecting forced self-accusations. Levy, Critics, supra at
836.
7
No. 2020AP1876-CR.bh
requires no man to accuse himself." Levy, Origins, supra at
277. Lilburne's trial was likely the final nail in the coffin
for England's prerogative courts. Reflecting popular
objections, Parliament abolished the Star Chamber in 1641, and
forbade use of the ex officio oath procedure in the English
ecclesiastical courts. Langbein, supra at 1073-74.
B. Impact on Founders & Ratification of Fifth Amendment
¶57 The experience of our English forebears in their fight
against the inquisition-style persecutions had a profound effect
on the founders. In 1735, a Presbyterian special commission in
Philadelphia investigated the unorthodox beliefs of local
minister Samuel Hemphill because of his deistic ideas. Levy,
Origins, supra at 382-83. Hemphill reportedly refused a demand
to give the commission his sermons because it was "contrary to
the common Rights of Mankind, no Man being obligated to furnish
Matter of Accusation against himself." Id. at 383. The
commission took his refusal as a "virtual confession of guilt,"
and suspended him for "Unsound and Dangerous" beliefs. Id. But
a young Benjamin Franklin came to Hemphill's defense, writing
that the commission resembled "that hellish Tribunal the
Inquisition." Id.
¶58 In 1788, during the debate in Massachusetts over
ratifying the newly proposed federal Constitution, one delegate
objected to the charter because nothing prevented "Congress from
passing laws which shall compel a man, who is accused or
suspected of a crime, to furnish evidence against himself."
8
No. 2020AP1876-CR.bh
Remarks by Abraham Holmes in the Massachusetts Debates, in 2 The
Debates in the Several State Conventions on the Adoption of the
Federal Constitution 111 (Jonathan Elliot ed., 1836). He warned
that the Constitution as proposed gave Congress the power to
create judicial bodies resembling "that diabolical institution,
the Inquisition." Id.
¶59 This widespread acceptance of the ancient right to not
accuse oneself was reflected in the first constitutions in the
new American states. Virginia led the way, establishing that no
one may "be compelled to give evidence against himself."
Virginia Declaration of Rights § 8 (1776). Seven other states
included similar provisions, granting rights against compulsion
"to give evidence" or "to furnish evidence" against oneself.
United States v. Hubbell, 530 U.S. 27, 52 (2000) (Thomas, J.,
concurring); Flint Water Cases, 53 F.4th at 215 (Thapar, J.,
concurring).
¶60 And when James Madison drafted the Fifth Amendment to
the United States Constitution, he used language similar to that
in state constitutions and wrote, "No person . . . shall be
compelled in any criminal case to be a witness against himself."3
Hubbell, 530 U.S. at 53 (Thomas, J., concurring); U.S. Const.
amend. V. Historians generally believe Madison's use of the
phrase "to be a witness" was synonymous with the "giving" or
The Wisconsin Constitution uses substantially the same
3
language. See Wis. Const. art. I, § 8(1) ("No person . . . may
be compelled in any criminal case to be a witness against
himself or herself.").
9
No. 2020AP1876-CR.bh
"furnishing" of evidence as phrased in many state constitutions.
Hubbell, 530 U.S. at 53 (Thomas, J., concurring).
¶61 In sum, although scholars debate the precise weight
different historical practices may have had in forming their
convictions, the general consensus is that the people who
adopted our Constitution had in mind the inquisitorial practices
of the ecclesiastical and prerogative courts along with their
forerunners. Ullmann v. United States, 350 U.S 422, 446 (1956)
(Douglas, J., dissenting); Flint Water Cases, 53 F.4th at 215
(Thapar, J., concurring in part); Sharon R. Gromer, Fifth
Amendment——The Right to a no "Adverse Inference" Jury
Instruction, 72 J. Crim. L. & Criminology 1307, 1307-08 (1981).
Moreover, they believed that this kind of violation of the basic
rights of mankind should be protected against, and did so in
their constitutions.
¶62 The text of the Self-Incrimination Clause of the Fifth
Amendment, therefore, invokes the pre-existing God-given right
of all persons to not be compelled to be a witness against
themselves. The word "compelled" at the time the amendment was
ratified meant forced or constrained. Compelled, New and
Complete Dictionary of the English Language (Edward & Charles
Dilly, eds. 1775). And the amendment gives this protection to
all persons "in any criminal case." U.S. Const. amend. V. 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. And as the
next part of the story reveals, our founders would not have had
10
No. 2020AP1876-CR.bh
the testimony of criminal defendants in mind when enshrining the
right against self-incrimination in the Constitution.
C. The Common Law Rule of Disqualification
¶63 During the Founding Era, common law rules disqualified
criminal defendants from testifying under oath in their own
trials. Ferguson v. Georgia, 365 U.S. 570, 573-74 (1961).
While this may seem foreign to us today, the central
justification for this rule at the time was that a party to a
case could not be trusted.
Id. at 573. The theory was that the
witness stand should be open only to "those presumably honest,
appreciating the sanctity of an oath, unaffected as a party by
the result, and free from any of the temptations of interest."
Benson v. United States,
146 U.S. 325, 336 (1892).
¶64 To be sure, defendants still often spoke at trial.
But they did so pro se in their own defense since legal
representation for the accused was uncommon (and in earlier
times, not even permitted). John Henry Wigmore, Treatise on the
System of Evidence in Trials at Common Law: Including the
Statutes and Judicial Decisions of All Jurisdictions of the
United States 697 (1904). Thus, defendants often had to argue
their own case and on occasion give their account of what
happened. Id. But their unsworn statements were not considered
testimony, and therefore were not viewed as evidence for the
jury to consider.
Id.
¶65 Moreover, the historical record supports the notion
that juries could draw adverse inferences from a defendant's
11
No. 2020AP1876-CR.bh
silence even though his statements weren't technically evidence.
Mitchell v. United States, 526 U.S. 314, 333-34 (1999) (Scalia,
J., dissenting). If a defendant did not defend himself, the
assumption was "that could only be because he was unable to deny
the truth of the evidence."
Id. at 334 (quoting J. Beattie,
Crime and the Courts in England: 1660–1800 348–349 (1986)).
Fact finders "did not hesitate to draw inferences of guilt when
defendants remained silent." Albert W. Alschuler, A Peculiar
Privilege in Historical Perspective: The Right to Remain
Silent,
94 Mich. L. Rev. 2625, 2631 (1996).
¶66 Some evidence also suggests that a defendant's silence
was directly commented upon. A typical process was that a
magistrate would examine a defendant pre-trial, getting the
defendant's story.4 And while the defendant was unable to
testify himself, the magistrate could and would report the
defendant's answers to the jury as testimonial evidence. John
H. Langbein, The Privilege and Common Law Criminal Procedure:
the Sixteenth to the Eighteenth Centuries, in The Privilege
Against Self–Incrimination: Its Origins and Development 92
(1997). If a defendant refused to answer the magistrate's
questions, the magistrate would report as much to the jury. Id.
Therefore, in this way, a defendant's decision not to answer
questions would be commented on to the jury, with negative
inferences from that front and center.
4This process was dictated by the Marian Committal Statute.
John H. Langbein, The Privilege and Common Law Criminal
Procedure: The Sixteenth to the Eighteenth Centuries, in The
Privilege Against Self–Incrimination: Its Origins and
Development 91-92 (1997).
12
No. 2020AP1876-CR.bh
¶67 When the Fifth Amendment was adopted, the rule
disqualifying parties from testifying——including criminal
defendants——was ubiquitous. Ferguson, 365 U.S. at 574; Richard
A. Nagareda, Reconceiving the Right to Present Witnesses,
97
Mich. L. Rev. 1063, 1113 (1999). Thus, the historical record
strongly weighs against any notion that the Fifth Amendment at
the time of its adoption was meant to prohibit comment upon or
adverse inferences regarding the failure of a criminal defendant
to testify in his trial——because that kind of testimony did not
happen, and comment upon and inferences from a defendant's
refusal to defend himself was commonplace.
D. Abolition of the Common Law Rule of Disqualification
¶68 This approach to criminal prosecutions, however, did
not hold. By the turn of the nineteenth century, some
dissenters began to voice concern with the status quo. John
Fabian Witt, Making the Fifth: The Constitutionalization of
American Self-Incrimination Doctrine, 1791-1903, 77 Tex. L. Rev.
825, 864 (1999). In 1805, a passionate Philadelphian circulated
a pamphlet calling the practice of disqualifying parties from
testifying (including criminal defendants) the "prodigious evil
of our jurisprudence."
Id. Serious public debate about these
rules began to take place in the 1830s, starting in England.
Id.; Ferguson,
365 U.S. at 575. Englishman Jeremy Bentham
assailed the practice of excluding a party from testifying
because, he argued, it effectively excluded truth. Witt, supra
at 863-64. He insisted that evidence "is the basis of justice;
13
No. 2020AP1876-CR.bh
exclude evidence, you exclude justice." Id. (quoting 5 Jeremy
Bentham, Rationale of Judicial Evidence 1 (London, Hunt & Clarke
1827)). Bentham's arguments caught on across the Atlantic, with
American contemporaries similarly maintaining that exclusion of
relevant witnesses "obstructed the 'discovery of the truth.'"
Id. at 865 (quoting another source); id. at 864 n. 147
(collecting sources).
¶69 By the dawn of the Civil War, the stage was set for
change. Maine led the way in 1859 by permitting defendants to
testify in some circumstances. Ferguson, 365 U.S. at 577. When
the Fourteenth Amendment was ratified in 1868, nine states had
followed suit.5 Mitchell, 526 U.S at 335-36 (Scalia, J.,
dissenting). In 1869, Wisconsin joined in and qualified
defendants for all trials. § 1, ch. 72, Laws of 1869. And the
federal government passed its own qualification statute in 1878.
See
18 U.S.C. § 3481. By the end of the nineteenth century,
5The United States Supreme Court has interpreted the
Fourteenth Amendment as rendering the Fifth Amendment applicable
against the states. Malloy v. Hogan, 378 U.S. 1, 10-11 (1964).
Thus, some scholars believe that the period surrounding the
adoption of the Fourteenth Amendment should also be examined
when a state action is challenged. See, e.g., New York State
Rifle & Pistol Assoc., Inc. v. Bruen,
142 S. Ct. 2111, 2138
(2022) (describing the debate). Here, the evidence from either
time period cuts the same way. By the time Congress adopted the
Fourteenth Amendment in 1868, only nine states qualified
defendants to testify. Mitchell v. United States,
526 U.S. 314,
335-36 & n.1 (1999) (Scalia, J., dissenting). Of those nine,
six prohibited adverse inferences while three didn't.
Id. at
335-36. Thus, since so few states prohibited adverse inferences
in 1868, it cannot "reasonably be argued that the new statutes
somehow created a 'revised' understanding of the Fifth Amendment
that was incorporated into . . . the Fourteenth Amendment."
Id. at 335.
14
No. 2020AP1876-CR.bh
nearly every state made provision for criminal defendants to
testify in their own defense. See Ferguson, 365 U.S. at 577 &
n.6.
¶70 This change naturally led to new policy debates. If a
defendant could testify, how should prosecutors and juries be
permitted to characterize this decision? Id. at 579-80; Gromer,
supra at 1308. The answer was not uniform. But many
jurisdictions enacted laws along the lines of that adopted by
the federal government in 1878, which provided that a
defendant's "failure to [testify] shall not create any
presumption against him."
18 U.S.C. § 3481.
¶71 In 1893, the United States Supreme Court was asked
whether a prosecutor's reference to a defendant's failure to
testify violated the no-presumption proscription in 18 U.S.C.
§ 3481. In Wilson v. United States, the Court said yes.
149
U.S. 60, 66-67 (1893). It reasoned that the prosecutor's
comment induced the jury "to disregard entirely the presumption
of innocence to which by the law he was entitled."
Id. at 66.
The thinking reflected in Wilson——rooted in a mix of statutory
and common law——began to proliferate around the country and
embed itself into American law over the next half century. See
J. Evans, Comment or Argument by Court or Counsel that
Prosecution Evidence is Uncontradicted as Amounting to Improper
Reference to Accused's Failure to Testify,
14 A.L.R.3d 723
(originally published in 1967) (collecting pre-Griffin cases).
¶72 With time, courts built out analytical frameworks for
how to analyze whether a prosecutor actually commented on a
15
No. 2020AP1876-CR.bh
defendant's failure to testify. The most well-known and oft-
cited of these cases is the Eighth Circuit's opinion in Morrison
v. United States, which is discussed extensively in the court's
opinion today. 6 F.2d 809 (8th Cir. 1925). In Morrison, the
court was asked to interpret and apply the same federal law
interpreted in Wilson (
18 U.S.C. § 3481). Id. at 811. The
Eighth Circuit framed the following test for analyzing whether a
prosecutor crossed over the line: whether "the language used
manifestly intended to be, or was it of such character that the
jury would naturally and necessarily take it to be a comment on
the failure of the accused to testify?" Id.
¶73 It is important to emphasize that even well into the
twentieth century, however, not every jurisdiction adopted this
approach or even forbade comments on an accused's silence. For
example, in 1934, California adopted a constitutional provision
that made entirely the opposite policy choice:
No person shall . . . be compelled in any criminal
case, to be a witness against himself; nor be deprived
of life, liberty, or property without due process of
law; but in any criminal case, whether the defendant
testifies or not, his failure to explain or to deny by
his testimony any evidence or facts in the case
against him may be commented upon by the court and by
counsel, and may be considered by the court or the
jury.
Cal. Const. art. I, § 13 (1938); see 1934 Enacted Proposition 5
(amending Art. I, § 13 of the California Constitution).
¶74 Therefore, before the United States Supreme Court's
decision in Griffin in 1965, most jurisdictions, including the
federal government, had a legal framework rooted in statutes and
cases that protected defendants from comments upon or adverse
16
No. 2020AP1876-CR.bh
inferences based on a criminal defendant's decision not to
testify. But this was not a universally shared approach.
D. Griffin & Its Aftermath
¶75 After initially rejecting the incorporation of the
Self-Incrimination Clause via the Fourteenth Amendment in 1908,6
the Supreme Court reversed course in 1964.7 That paved the way
for Griffin, decided the very next year. In Griffin, the State
of California tried the defendant for first degree murder. 380
U.S. at 609. When the trial court instructed the jury on the
issue of guilt, it told them that they could infer guilt from
the defendant's failure to testify.
Id. at 609-10. The
prosecutor made hay, telling the jury that the defendant "has
not seen fit to take the stand and deny or explain."
Id. at
611. The jury convicted the defendant and he appealed.
Id.
¶76 The United States Supreme Court acknowledged that the
Wilson decision——which forbade comment by the prosecution on a
defendant's failure to take the stand——"rested not on the Fifth
Amendment, but on an Act of Congress, now 18 U.S.C. [§] 3481."
Id. at 612. But the court nonetheless concluded that the
"comment rule" approved by California violated the Fifth
Amendment. Id. at 613.
¶77 The Court quoted the following excerpt from Wilson,
which described the reasoning behind 18 U.S.C. § 3481:
6 Twining v. New Jersey, 211 U.S. 78 (1908).
7 Malloy, 378 U.S. at 10-11.
17
No. 2020AP1876-CR.bh
[T]he act was framed with a due regard also to those
who might prefer to rely upon the presumption of
innocence which the law gives to everyone . . . . The
statute, in tenderness to the weakness of those who
from the causes mentioned might refuse to ask to be a
witness . . . declares that the failure of a defendant
in a criminal action to request to be a witness shall
not create any presumption against him.
Id. at 613 (quoting Wilson,
149 U.S. at 66). Griffin
extrapolated that if "the words 'fifth Amendment' are
substituted for 'act' and for 'statute' the spirit of the Self-
Incrimination Clause is reflected" because "comment on the
refusal to testify is a remnant of the 'inquisitorial system of
criminal justice.'" Id. at 613-14. Accordingly, the Court held
that the Fifth Amendment forbids "either comment by the
prosecution on the accused's silence or instructions by the
court that such silence is evidence of guilt." Id. at 615.
¶78 This constitutional rule has not been without its
critics. In Mitchell, the Supreme Court was asked whether
Griffin prohibits a trial court from drawing an adverse
inference from a defendant's silence during a sentencing
hearing. Mitchell, 526 U.S. at 316-17, 327-28. The Court said
it did.
Id. at 328-29. Justice Scalia dissented, observing
that "Griffin is out of sync with the historical understanding
of the Fifth Amendment."
Id. at 332 (Scalia, J., dissenting).
However, he cautioned that he would not overrule Griffin because
of the rule's widespread acceptance.
Id. Justice Thomas agreed
with Justice Scalia that Griffin lacked "foundation in the
Constitution's text, history, or logic."
Id. at 341 (Thomas,
J., dissenting). But he wrote that he would reconsider Griffin
in the appropriate case.
Id. at 343.
18
No. 2020AP1876-CR.bh
¶79 Critiques aside, much of the application of Griffin
has been left to lower courts. If a prosecutor made an explicit
comment about the defendant's failure to testify, then a court
easily found a Griffin violation. But what if a prosecutor made
an indirect or implicit comment? This gave "lower federal
courts problems." Butler v. Rose, 686 F.2d 1163, 1170 (6th Cir.
1982) (en banc). All lower federal courts——and most states——
eventually responded by adopting the test created by the Eighth
Circuit in Morrison.
Id. at 1170 & n.6 (collecting cases);
Moore v. State,
669 N.E.2d 733, 738 (Ind. 1996) (collecting
cases). Even though Morrison was premised on interpretation of
the federal statute, Griffin has been understood as largely
incorporating this preexisting body of law into the Fifth
Amendment.
E. Historical Summary
¶80 The bottom line is this. Griffin holds that
commenting on a criminal defendant's failure to testify violates
the Fifth Amendment. There is precious little evidence,
however, that the original meaning of the Self-Incrimination
Clause of the Fifth Amendment extends this far. The text does
not say this, and the history does not bear this out. 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. It enshrines the right to
remain silent enumerated in the text, and functionally prohibits
19
No. 2020AP1876-CR.bh
improper inferences against defendants who exercise this
constitutional right.
II. ORIGINAL MEANING & BINDING PRECEDENT
¶81 In this case, our obligation as a lower court is to
faithfully apply United States Supreme Court precedent. State
v. Jennings, 2002 WI 44, ¶18,
252 Wis. 2d 228,
647 N.W.2d 142;
United States v. Johnson,
921 F.3d 991, 1001 (11th Cir. 2019)
(en banc). But Hoyle asks us to protect defendants even further
by applying Griffin in a more robust way to cover the comments
made by the prosecutor here. I do not believe Griffin or its
progeny require us to do so for the reasons explained in the
majority opinion, and I therefore join it. But the original
meaning and historical record provide additional support for the
decision not to extend Griffin further.
¶82 Justice Thomas has remarked that when there is little
evidence suggesting a legal doctrine is grounded in the original
meaning of the Constitution, "the Court should tread carefully
before extending our precedents." Garza v. Idaho, 139
S. Ct. 738, 756 (2019) (Thomas, dissenting). I agree. When
faced with the choice to extend precedent in these
circumstances, we should "resolve questions about the scope of
those precedents in light of and in the direction of the
constitutional text and constitutional history." Free Enter.
Fund,
537 F.3d at 698 (Kavanaugh, J., dissenting).8
8 See also Josh Blackman, Originalism and Stare Decisis in
the Lower Courts, 13 NYU J. L. & Liberty 44 (2019).
20
No. 2020AP1876-CR.bh
¶83 The dissent rejects this approach, largely because it
rejects originalism as a methodology. Several reasons underlie
its objections. First, the dissent proclaims originalism
insufficiently determinate. In the dissent's view, originalism
wrongly "assumes that each constitutional provision had a
single, accepted original understanding." Dissent, ¶106
(quoting Erwin Chemerinsky, Worse Than Nothing: The Dangerous
Fallacy of Originalism 56 (2022)). And in a case like this,
reasonable judges will disagree about what constitutes extending
precedent and what constitutes faithfully applying it. Id.,
¶105. Therefore, my approach, as the dissent sees it, is
susceptible to judges using originalism selectively to achieve
their preferred results. Second, the dissent says that
originalism will lead to unacceptable results, potentially
undermining certain currently-accepted constitutional principles
it thinks should not be up for debate. Id., ¶106. Finally, the
dissent suggests the original meaning is just one tool among
many in the task of interpreting legal texts. Id., ¶109.
¶84 I will not endeavor in this concurrence to provide a
comprehensive response to these arguments, but I offer several
brief points. First, in the abstract, the dissent is not wrong
that originalism fails to give clear answers to every question,
and is therefore vulnerable to manipulation. But originalism is
not preferable simply for its clarity or ability to restrain
judges (although in the main I believe it offers these virtues
as well). The foremost reason judges must discern and follow
the original meaning is because a written constitution is the
21
No. 2020AP1876-CR.bh
law, and all written laws should be construed to mean what they
meant when they were written. District of Columbia v. Heller,
554 U.S. 570, 592 (2008); Gibbons v. Ogden,
22 U.S. (9 Wheat.)
1, 188 (1824); Serv. Emps. Int'l Union, Local 1 v. Vos,
2020
WI 67, ¶28,
393 Wis. 2d 38,
946 N.W.2d 35; State v. Roundtree,
2021 WI 1, ¶112,
395 Wis. 2d 94,
952 N.W.2d 765 (Hagedorn, J.,
dissenting). Originalism, like textualism, flows from the
conviction that the text is the law, and our obligation is to be
faithful to the meaning of the text. Vos,
393 Wis. 2d 38, ¶28;
State ex rel. Bond v. French,
2 Pin. 181, 184 (Wis. 1849).
¶85 It is true that other considerations may impact how we
decide cases. Precedent, for example, has an important role to
play in disputes over legal issues that have already been
decided. It is also true that sometimes fidelity to
constitutional commands calls for judicial judgment——for
example, upholding the right of the people against "unreasonable
searches and seizures." See U.S. Const. amend. IV; Wis. Const.
art. I, § 11. The dissent's objections on these grounds mistake
originalism as a methodology for discerning the meaning of the
Constitution with originalism as the only component of case
adjudication. The divergent approaches of Justice Scalia and
Justice Thomas on how they would respond to a hypothetical
request to overrule Griffin are a prime example of this.
¶86 Yes, constitutional language can be hard to interpret
in the first instance, and even harder to apply in practice.
22
No. 2020AP1876-CR.bh
The same is true for statutes.9 But difficult cases do not
change our obligation or goal. A textual puzzle is not a
license to impose our own take on what the law should be. Our
job when facing an unclear law is still to get as close as we
can to what the text actually means. The dissent points to the
competing history-filled opinions in Heller as a reason to doubt
the utility of originalism. Dissent, ¶106 n.4. On the
contrary, Heller is a fine example of what judges should do when
confronted with a hard-to-understand law: comb the evidence,
debate it, and try to get it right. Smart judges doing this
well will disagree sometimes. That's okay. Indeterminacy is an
inherent feature of law written by people. Thus, the dissent's
criticism "isn't an attack against originalism so much as it is
an attack on written law." Neil Gorsuch, A Republic, If You Can
Keep It 113 (2019). And yes, some judges may exploit legal
uncertainty or be inconsistent in their professed methodology.
But the judiciary is filled with imperfect people who
nonetheless swear an oath to faithfully read and apply the law
impartially in every case. The fallibility of judges is the
price we must pay for an independent judiciary. This reality
says nothing about how judges should endeavor to carry out their
9 See e.g., Becker v. Dane County, 2022 WI 63, ¶¶9-22,
403
Wis. 2d 424,
977 N.W.2d 390 (interpreting the meaning of
"reasonable and necessary" in
Wis. Stat. § 252.03); Friends of
Frame Park, U.A. v. City of Waukesha,
2022 WI 57, ¶¶13-25,
403
Wis. 2d 1,
976 N.W.2d 263 (lead op.) (interpreting the meaning
of "prevails in whole or in substantial part" in
Wis. Stat.
§ 19.37(2)(a)); State v. Perez,
2001 WI 79, ¶¶15-60,
244
Wis. 2d 582,
628 N.W.2d 820 (interpreting the meaning of "a
crime involving the use of the dangerous weapon" in
Wis. Stat.
§ 968.20(1m)(b)).
23
No. 2020AP1876-CR.bh
responsibility to say what the law is, not what they wish the
law to be.
¶87 Finally, the dissent fails to offer a competing vision
for how to read the law accurately. Rather, the dissent lists a
series of legal tools judges can consider: text, history,
precedent, context, historical practice and tradition, and the
"need to balance 'the majority's values against the values that
should be protected from society's majorities.'" Dissent, ¶109
(quoting Chemerinsky, supra at 207). What the dissent misses is
the end goal of these legal tools. They are not an a la carte
menu from which judges can cherry-pick their preferred legal
rationale. Rather, legal evidence and authority are
legitimately and appropriately deployed when used in service of
getting the law right. Several of these——text, history,
context, historical practice, and even some precedent——can be
relevant to discerning the original meaning of the Constitution.
But where the meaning of the law comes into view, as it usually
does even in hard cases, we do not have a license to override it
by balancing competing values or any other outcome-focused
concern.
¶88 At the end of the day, the dissent's method of picking
the legal tools you like——what the text meant when written being
merely one data point to consider——is a subtle invitation for
judges to decide what the Constitution should mean, rather than
to keep the focus on what it does mean. This must not be. Our
founders did not establish a system of government where judges
in our highest courts are unconstrained by the meaning of the
24
No. 2020AP1876-CR.bh
law the people have enacted, free to import their own values
into the Constitution. Originalism may not answer every
question. Originalist judges may not always be consistent. But
we can be sure of this: A choose-your-own-adventure judicial
methodology poses an even greater danger because it offers no
rubric to grade one's fidelity to the law.
¶89 As I see it, where United States Supreme Court
precedent is on point, we must apply it faithfully. But where
we are asked to extend the logic of precedent into new areas,
the original meaning ought to serve as the North Star toward
which unresolved questions regarding the scope of those
precedents should aim. In this case, I believe Griffin does not
prohibit the prosecutor's comments. Furthermore, not extending
Griffin to this factual scenario appropriately resolves this
case in the direction of the original meaning of the
constitutional text as best as I can discern. For these
reasons, I respectfully concur.
¶90 I am authorized to state that Justice REBECCA GRASSL
BRADLEY joins this concurrence.
25
No. 2020AP1876-CR.rfd
¶91 REBECCA FRANK DALLET, J. (dissenting). The Fifth
Amendment provides that no one "shall be compelled in any
criminal case to be a witness against himself." U.S. Const. am.
V. For that constitutional privilege to be meaningful, it must
also prohibit the prosecutor or the court from telling the jury
that the defendant's decision not to testify is evidence of
guilt. See Griffin v. California, 380 U.S. 609, 615 (1965).
Otherwise, such direct commentary on the defendant's exercise of
his constitutional rights would "cut[] down on the privilege by
making its assertion costly" and allow the prosecution or the
court to penalize the defendant for holding the government to
its burden of proving guilt beyond a reasonable doubt. See
id.
at 613-14.
¶92 But a defendant can also be penalized by an indirect
comment on the failure to testify. That is because an oblique
reference to the defendant's decision not to take the stand
might nevertheless invite the jury to draw the natural, but
impermissible inference that the defendant's silence
demonstrates guilt. See Lakeside v. Oregon, 435 U.S. 333, 345
(1978) (Stevens, J., dissenting) ("Even if jurors try faithfully
to obey their instructions, the connection between silence and
guilt is often too direct and too natural to be resisted.").
For that reason, federal and state courts across the country
have held that even an indirect comment on the defendant's
decision not to testify violates the Fifth Amendment if it is
"manifestly intended to be or [is] of such a character that the
1
No. 2020AP1876-CR.rfd
jury would naturally and necessarily take it to be a comment on
the failure of the accused to testify." See Butler v. Rose, 686
F.2d 1163, 1170 (6th Cir. 1982) (en banc); see also United
States v. Cotnam,
88 F.3d 487, 497 (7th Cir. 1996) ("We have
repeatedly recognized that indirect commentary on a defendant's
failure to take the stand can also constitute a violation of the
defendant's Fifth Amendment privilege not to testify."); State
v. Johnson, 121 Wis. 2d 237, 248,
358 N.W.2d 824 (Ct. App.
1984).
¶93 One type of indirect comment that juries would
"naturally and necessarily" understand as a reference to the
decision not to testify occurs when the prosecutor repeatedly
characterizes evidence as "undisputed" or "uncontradicted" and
the only person who could reasonably have contradicted that
evidence is the defendant. See, e.g., Freeman v. Lane, 962 F.2d
1252, 1254-55, 1261 (7th Cir. 1992) (repeated statements that
evidence only the defendant could dispute was "unrebutted" and
"uncontradicted" violated the Fifth Amendment); Lent v. Wells,
861 F.2d 972, 974-77 (6th Cir. 1988) (prosecutor's comments in a
sexual assault case that evidence only the defendant could rebut
was "uncontradicted," and "unrebutted" were improper commentary
on the defendant's decision not to testify). Statements like
these "naturally and necessarily" refer to the decision not to
testify because they "'can only cause the jury to naturally look
to the only other evidence there is——the defendant.'" See
United States v. Preston,
873 F.3d 829, 842 (9th Cir. 2017)
(quoting Lincoln v. Sunn,
807 F.2d 805, 809 (9th Cir. 1987)).
2
No. 2020AP1876-CR.rfd
¶94 Applying these cases, it is clear that the prosecutor
violated Hoyle's Fifth Amendment rights by repeatedly
characterizing as "uncontroverted" evidence only Hoyle could
dispute. Hoyle was prosecuted for a sexual assault that
occurred when he and the victim were alone in a car on a dead-
end road in a rural area. There was no physical evidence, and
accordingly, just Hoyle and the victim could have testified to
what happened in that car. And because the jury heard only from
the victim, her testimony about the sexual assault was
uncontroverted.
¶95 Rather than focusing solely on the credibility of the
victim's testimony, the prosecutor made the fact that her
statements were uncontroverted the theme of his closing
argument. In fact, this theme was so important that the
prosecutor asked the circuit court to rule before trial that it
was permissible.1 In his closing argument, the prosecutor
hammered his point relentlessly, repeatedly telling the jury
that the victim's testimony was uncontroverted. In just nine
pages of transcript, he described the victim's testimony as
uncontroverted four times, and twice told the jury there was "no
evidence disputing" her account. On rebuttal, he returned to
that same theme, telling the jury "[y]ou need to make the
decision based on the uncontroverted testimony of what she says
In support of his motion, the prosecutor stated "I can't
1
say [the evidence] is uncontroverted because the defendant
didn't testify, but I can say that her testimony is
uncontroverted and that [the jury] ha[sn't] heard any testimony
to the contrary." The circuit court granted the motion.
3
No. 2020AP1876-CR.rfd
occurred. They [the defense] don't disagree it's
uncontroverted." But only Hoyle could have controverted the
victim's testimony about what happened in his car that day. And
for that reason, the jury would naturally and necessarily have
taken the prosecutor's repeated characterization of the victim's
testimony as "uncontroverted" as a comment on Hoyle's decision
to exercise his Fifth Amendment right not to testify at trial.
See Williams v. Lane, 826 F.2d 654, 665 (7th Cir. 1987) ("Only
[the defendant] could possibly have rebutted both [the victim's]
version of what happened after he pulled his car over . . . and
her testimony that she did not consent.").
¶96 According to the majority, that is not enough to
establish a Fifth Amendment violation, since the prosecutor's
comments weren't "adverse" to Hoyle. See majority op., ¶38,
n.11. In other words, the prosecutor did not "ask[] or
intimate[] that the jury should interpret Hoyle's silence as an
admission of guilt." Id. The majority cites no authority for
the supposed requirement, but it appears to be drawing on State
v. Jaimes,
2006 WI App 93, ¶22,
292 Wis. 2d 656,
715 N.W.2d 669,
which said that a "comment must propose that the failure to
testify demonstrates guilt" in order to violate the Fifth
Amendment.
Id. The problem is that none of the other federal
cases discussed earlier contain such a requirement, and the case
Jaimes cites as support, United States v. Robinson,
485 U.S. 25,
4
No. 2020AP1876-CR.rfd
34 (1988), doesn't say that either.2 That makes sense. "Given
the prosecutor's institutional role, when the prosecutor merely
'comments' on the failure of an accused to testify, the
reference is in all likelihood calculated to encourage the jury
to equate silence with guilt." United States v. Mena, 863 F.2d
1522, 1534 (11th Cir. 1989). And that is especially true when
the comment references the defendant's failure to dispute
evidence that only he could rebut. Indeed, I can't imagine how
such a comment could be taken as anything but "adverse" or
"intimat[ing] that the jury should interpret Hoyle's silence as
an admission of guilt." See majority op., ¶38 n.11.
¶97 Setting aside the majority's supposed requirement that
the prosecutor's comments be "adverse," it concedes that
repeatedly calling evidence only the defendant could dispute
"uncontroverted" violates the Fifth Amendment. See majority
op., ¶37. Nevertheless, the majority asserts that Hoyle's Fifth
Amendment rights weren't violated here because "other evidence
might exist that would controvert the State's witnesses." See
id. In support, the majority points to defense counsel's
statements in his closing argument about hypothetical evidence
the police did not gather, namely statements from the victim's
family members that they did not interview, physical evidence
Lakeside v. Oregon, 435 U.S. 333, 338 (1978) does suggest
2
that Griffin is "concerned only with adverse comment" on the
defendant's decision not to testify. Nevertheless, Lakeside is
distinguishable because it dealt with an instruction to the jury
that it could not infer guilt from the defendant's failure to
testify. See id. By contrast, the prosecutor's comments in
this case drew negative attention to Hoyle's decision not to
testify.
5
No. 2020AP1876-CR.rfd
they did not collect, and surveillance footage from the place
where the victim was dropped off after the assault that they did
not obtain. See id. But the prosecutor's refrain throughout
his closing argument was that the victim's account of what
happened in Hoyle's car was undisputed. None of this other
evidence, even if it existed, could have contradicted that
account——only Hoyle could have done so. See Freeman,
962 F.2d
at 1261 ("The only witness to this crime who was available to
testify was [the victim], who identified [the defendant] as his
assailant. Realistically, the only person who could
satisfactorily rebut this testimony was [the defendant]
himself." (citing Williams, 826 F.2d at 665)). Moreover, "[a]
speculative possibility that some third party could have
testified for the defense is not enough" to demonstrate that
someone "'other than the defendant could rebut the evidence.'"
United States v. Tanner,
628 F.3d 890, 899 (7th Cir. 2010)
(quoting Freeman,
962 F.2d at 1260). Despite the majority's
speculation about other possible evidence, the jury knew that
only the victim and Hoyle could testify as to what happened in
his 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. See Freeman,
962 F.2d at 1260; see also
Commonwealth v. Robertson,
431 S.W.3d 430, 437 (Ky. Ct. App.
2013) (concluding that comments in closing argument about the
victims' "un-refuted" testimony were improper where "only one
6
No. 2020AP1876-CR.rfd
person possessed the knowledge to conclusively rebut the
testimony of the [victims]," the defendant).
¶98 The majority's alternative argument——that the
prosecutor's comments were simply references to the jury
instructions, which properly told jurors to evaluate only the
evidence in reaching its verdict——is similarly unavailing. See
majority op., ¶¶34-36. To begin with, only a few of the
prosecutor's comments can fairly be read as references to the
jury instructions, rather than Hoyle's decision not to testify.
Before closing arguments began, the circuit court correctly
instructed the jury that its job was to weigh the evidence,
including the credibility of witnesses, and not to engage in
speculation or to consider "in any manner" Hoyle's decision not
to testify. And the prosecutor began his closing argument by
referring back to those same instructions, noting that the jury
was "supposed to just focus on what you heard yesterday with the
testimony. [The victim's] testimony that she gave here
yesterday is uncontroverted." Likewise, after summarizing the
victim's testimony, the prosecutor again returned to the jury
instructions, reminding jurors "[y]ou are not to sit there and
say, what if I had this information, what if this was different,
what if that was different? You're not to speculate . . . .
You're to focus on what you heard yesterday . . . about how [the
victim] was assaulted by this defendant." If the prosecutor had
stopped there, I might agree with the majority that his comments
did not cross the line. After all, the majority is right that
there is no categorical prohibition on characterizing evidence
7
No. 2020AP1876-CR.rfd
as uncontroverted, especially in the context of reminding jurors
that their verdict must be based on the evidence presented at
trial and not on speculation. See id., ¶31
¶99 But the prosecutor didn't stop there, or merely "lean
on the jury instructions." Id., ¶35. Instead, he all but told
the jury that it had to convict Hoyle because "[t]here is
absolutely no evidence disputing" the victim's account of the
sexual assault. The prosecutor emphasized that the victim's
statements to law enforcement were "uncontroverted," her
testimony at trial was "uncontroverted," the jury "heard no
evidence disputing her account of that sexual assault," "You
heard nothing," and most troublingly, that they "didn't hear
from . . . anyone else testifying about" the assault. Then, on
rebuttal, he tied the victim's undisputed testimony even more
directly to the Hoyle's failure to testify, telling jurors that
the defense did not "disagree [that the victim's testimony was]
uncontroverted." His point, which he reiterated again and
again, was that the victim's testimony about the sexual assault
was uncontroverted, not that the jury should focus on the
evidence and the court's instructions.
¶100 As many other courts have concluded, the more a
prosecutor repeats statements like these, the more likely they
are to be perceived by the jury as comments on the defendant's
decision not to testify. See, e.g., Rodriguez-Sandoval v.
United States, 409 F.2d 529, 531 (1st Cir. 1969); State v.
McMurry,
143 P.3d 400, 404 (Idaho Ct. App. 2006); People v.
Johnson,
429 N.E.2d 905, 910-11 (Ill. Ct. App. 1981). And that
8
No. 2020AP1876-CR.rfd
is particularly true when, as here, those repeated comments
occurred during a short closing argument and referred to the
defense directly. Compare Rodriguez-Sandoval, 409 F.2d at 531
(describing a prosecutor's five references to uncontradicted
testimony in his closing argument as "extremely aggravated from
the quantitative standpoint"), with Webb v. Mitchell,
586 F.3d
383, 397 (6th Cir. 2009) (noting that an isolated comment did
not "establish an extensive pattern in the context of the
prosecutor's summation, which spanned ninety-four pages.").
Accordingly, the jury in this case would not have perceived the
prosecutor's statements as mere commentary on the jury
instructions or the evidence the jury should consider. Rather,
the jury would "naturally and necessarily" understand them as a
repeated reminder that Hoyle——the only person who could have
disputed the victim's account of what happened——did not testify.
See Butler,
686 F.2d at 1170.
¶101 Additionally, the circuit court's decision to allow
these comments was not a harmless error. An error is harmless
if the State proves "beyond a reasonable doubt that the error
complained of did not contribute to the verdict obtained."
Chapman v. California, 386 U.S. 18, 24 (1967). The State did
not argue that allowing the prosecutor's comments was harmless.
But even if it had, such an argument would be unavailing.
Although the evidence presented at trial was certainly enough to
support a guilty verdict, the prosecutor's repeated statements
might have led the jury to give the victim's testimony too much
weight or, worse yet, to treat Hoyle's decision not to testify
9
No. 2020AP1876-CR.rfd
as a reason to find him guilty. The State therefore cannot
demonstrate beyond a reasonable doubt that the violation of
Hoyle's Fifth Amendment rights was harmless. See id.
¶102 In sum, a faithful application of Griffin and the
principles it announced leads to just one conclusion: The
prosecutor's comments violated Hoyle's Fifth Amendment rights.
Accordingly, I respectfully dissent.
¶103 In closing, I want to address several points made by
the concurrence about the supposed original public meaning of
the Fifth Amendment and the role that meaning should play in
this case and others. For starters, it's not clear what——if
anything——the history of the Fifth Amendment can tell us about
how its protections should apply today. If, as the concurrence
asserts, defendants were not permitted to testify at the time of
the founding,3 then of course the framers of the Fifth Amendment
weren't concerned with prosecutors commenting on the defendant's
failure to testify. There would be no point in making such a
comment since all defendants were required to remain silent.
And for that reason, a jury obviously wouldn't draw any negative
inferences from a defendant's silence either. But 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
3 State laws enacted shortly after the founding also
prohibited slaves or people of color from testifying at trial if
a white person was a party. See, e.g., Amanda Carlin, Comment,
The Courtroom As White Space: Racial Performance As
Noncredibility, 63 UCLA L. Rev. 450, 454-58 (2016).
10
No. 2020AP1876-CR.rfd
more than a century ago. See concurrence, ¶¶57-74. Yet the
concurrence simply assumes that, because the Fifth Amendment was
adopted in a radically different context than today,
contemporary courts must stand silent when prosecutors use a
defendant's decision not to testify against him.
¶104 I disagree. Griffin and the cases addressing indirect
commentary on a defendant's decision not to testify all
recognize that comments suggesting that a defendant's silence is
indicative of guilt are the functional equivalent of compelling
a defendant to testify. See, e.g., Griffin, 380 U.S. at 614-15;
Butler,
686 F.2d at 1170. Such comments penalize the defendant
for exercising his constitutional right to remain silent——little
different than the Star Chamber holding Lilburne in contempt for
his silence. See concurrence, ¶56. If the Fifth Amendment's
privilege against self-incrimination is to mean anything today,
it must protect against prosecutors who invite the jury——
directly or indirectly——to penalize the defendant for exercising
his constitutional right to remain silent.
¶105 More fundamentally though, there are at least two
reasons to reject the concurrence's proposal that "when there is
little evidence suggesting a legal doctrine is grounded in the
original meaning of the Constitution, '[we] should tread
carefully before extending [that] precedent[].'" Concurrence
¶82 (quoting Garza v. Idaho, 139 S. Ct. 738, 756 (2019) (Thomas,
J., dissenting)). First, we are bound by all United States
Supreme Court decisions——not just the ones any individual
justice feels are "grounded in the original meaning of the
11
No. 2020AP1876-CR.rfd
Constitution." Concurrence, ¶82. And although the concurrence
concedes this point, it fails to acknowledge that reasonable
judges can disagree about whether a particular decision
"extends" or merely faithfully applies existing precedent to
different facts or circumstances. See United States v. Johnson,
921 F.3d 991, 1001 (11th Cir. 2019) (en banc) ("[W]e must apply
Supreme Court precedent neither narrowly nor liberally——only
faithfully."). There is no objective test for deciding whether
or not we are "extending" a prior precedent. Accordingly, a
results-oriented judge could use the concurrence's approach to
distinguish existing precedent on superficial grounds, and then
decline to "extend" that precedent in order to achieve their
desired result. See, e.g., Caroline Mala Corbin, Opportunistic
Originalism and the Establishment Clause, 54 Wake Forest L. Rev.
617, 618 (2018) (describing the United States Supreme Court's
use of originalism as "opportunistic because sometimes the Court
relies on it, and sometimes it does not.").
¶106 Second, but more importantly, I disagree with the
concurrence's conclusion that constitutional interpretation
should always be guided by the original public meaning of the
provision at issue. "[T]he search for 'original meaning'
assumes that each constitutional provision had a single,
accepted original understanding." See Erwin Chemerinsky, Worse
Than Nothing: The Dangerous Fallacy of Originalism 56 (2022).
12
No. 2020AP1876-CR.rfd
But in reality, that consensus often didn't exist.4 See id.
Given that originalism bills itself as a determinate and value-
neutral alternative to other methods of constitutional
interpretation, this is a problem. See Frank B. Cross, The
Failed Promises of Originalism 13 (2013) ("The best functional
case for originalism lies in its claimed objectivity and
neutrality.") Because a single, objective original public
meaning often doesn't exist, originalism cannot deliver the
objective answers that it promises, let alone constrain judges
who might want to decide cases in ways that fit with their
preferences. See Chermerinsky, supra at 56-58. And in that
respect, originalism is no different than any other interpretive
methodology, only it allows its adherents to hide their lack of
constraints behind a false patina of objectivity. Worse yet, if
originalism is taken to its logical conclusion, it would result
in the radical rejection of long-settled constitutional
principles. Indeed, one of the opinions the concurrence cites
argues that the Sixth Amendment's guarantee of counsel to
indigent criminal defendants is at odds with the Constitution's
original public meaning. See Garza, 139 S. Ct. at 757 (Thomas,
J., dissenting). That's not all though. Brown v. Board of
This point is illustrated by the United States Supreme
4
Court's decision in District of Columbia v. Heller, 554 U.S. 570
(2008). Justice Scalia's majority opinion argued that the text
and history of the Second Amendment supported a constitutional
right to possess a gun for self-defense in the home. See
id. at
595. But Justice Stevens' dissent contended that text and
history supported the opposite result. See
id. at 640
(Stevens, J., dissenting). In short, history is often in the
eye of the beholder.
13
No. 2020AP1876-CR.rfd
Education,5 same sex marriage, virtually all rights of women6 and
racial minorities, and any number of other fundamental rights
are difficult, if not impossible, to justify on originalist
grounds. See Chemerinsky, supra at 92-114. As one scholar put
it, "[t]he only kind of originalism that is reasonably
determinate leads to conclusions that practically no one
accepts. But less determinate forms of originalism can be
enlisted to support pretty much anything." David A. Strauss,
Can Originalism Be Saved?, 92 B.U. L. Rev. 1161, 1162 (2012).
¶107 The concurrence concedes that "originalism fails to
give clear answers to every question, and is therefore
vulnerable to manipulation," but nonetheless argues that we must
adopt it because "a written constitution is the law, and all
written laws should be construed to mean what they meant when
they were written." Concurrence, ¶84. But this argument for
originalism is circular. It simply defines "interpretation"
"as synonymous with originalist interpretation" and then uses
that definition as evidence that only originalist interpretation
is permissible. See Andrew B. Coan, The Irrelevance of
Writtenness in Constitutional Interpretation, 158 U. Pa. L. Rev.
5347 U.S. 483 (1954).
Indeed, just last year, the United States Supreme Court
6
concluded that "history and tradition" led to the "clear
answer . . . that the Fourteenth Amendment does not protect the
right to an abortion." Dobbs v. Jackson Women's Health Org.,
142 S. Ct. 2228, 2248 (2022). But as in Heller, the history on
which the majority relied is contested. See id. at 2324
(Breyer, Sotomayor, and Kagan, JJ., dissenting)
("[E]mbarrassingly for the majority . . . early law in fact does
provide some support for abortion rights.").
14
No. 2020AP1876-CR.rfd
1025, 1030 (2010); see also Cherminsky, supra at 26
("[A]rguments from definition aren't arguments at all; they do
not defend their conclusion but assume it."). There are,
however, any number of non-originalist ways of interpreting the
Constitution that nevertheless give effect to its text. See
Coan, supra at 1047 (identifying, for example, an approach that
treats the text as "one of many legitimate ingredients in a
pluralistic practice of constitutional adjudication."). Simply
observing that the Constitution was written down isn't enough to
demonstrate that originalism is required.
¶108 No matter our approach, however, it is important to
emphasize that constitutional interpretation is rarely as simple
as merely reading the words and applying them. Most of the
Constitution's key provisions, like the guarantees of "equal
protection of the laws" and "due process," or the protections
against "unreasonable searches and seizures" or "cruel and
unusual punishment" are vague——and deliberately so. See
generally U.S. Const. am. IV, V, VIII, XIV. In writing these
open-ended clauses, the Framers weren't trying to settle every
legal question that might arise under these provisions for all
time.7 They were instead trying to create a document that would
7Moreover, even when the Constitution uses more precise
language, like the First Amendment's statement that "Congress
shall make no law respecting an establishment of religion . . .
or abridging the freedom of speech," it often doesn't mean what
it says. See U.S. Const. am. I. Nobody would say, for example,
that "[b]oth the President and the federal courts could abridge
the freedom of speech and prohibit the free exercise of
religion, because the First Amendment, by its terms, applies
only to 'Congress.'" See David A. Strauss, Foreword: Does the
Constitution Mean What It Says?, 129 Harv. L. Rev. 1, 3 (2015).
15
No. 2020AP1876-CR.rfd
endure by "provid[ing] a political platform wide enough to allow
for considerable latitude within which future generations could
make their own decisions." Joseph J. Ellis, The Quartet:
Orchestrating the Second American Revolution, 1783-1789, at 219
(2015); see also Jack M. Balkin, Living Originalism 27 (2011)
("[C]onstitutional framers and ratifiers very often use open-
ended language that deliberately delegates questions of
application to future interpreters."). In making those
decisions, the Framers did not expect their views would govern
over those of future generations either. Indeed, James Madison
himself said that his notes from the Constitutional Convention
"could never be regarded as the oracular guide in expounding the
Constitution." Boris I. Bittker, Interpreting the Constitution:
Is the Intent of the Framers Controlling? If Not, What Is?, 19
Harv. J.L. & Pub. Pol'y 9, 32 (1995) (quoting 5 Annals of Cong.
776 (1796)). And Thomas Jefferson cautioned that a
"sanctimonious reverence" for the Framers was akin to
"requir[ing] a man to wear still the coat which fitted him when
a boy." Letter from Thomas Jefferson to Samuel Kercheval (July
12, 1816), in 10 Paul Leicester Ford, Writings of Thomas
Jefferson 42-43 (1899).
¶109 In sum, constitutional interpretation nearly always
requires more than merely construing the text "to mean what [it]
meant when [it] w[as] written." See concurrence, ¶84. And that
is true whether one is an originalist or not. No method of
constitutional interpretation can provide objective, valueneutral decisions in all cases. But that doesn't mean that we
16
No. 2020AP1876-CR.rfd
are engaged in a "choose-your-own-adventure" exercise, deciding
cases based on what we think "the Constitution should mean,
rather than . . . what it does mean." See concurrence, ¶88. In
my view, interpreting the Constitution faithfully requires us to
read its text and history carefully, but also to consider
precedent, context, historical practice and tradition, and the
need to balance "the majority's values against the values that
should be protected from society's majorities." Chemerinsky,
supra, at 207. That, after all, is what the Constitution is all
about.
¶110 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
17
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1
