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June 19, 2006

A somewhat unusual result the other day from the 8th District in State v. Person. The police had been using a confidential reliable informant to conduct a "buy-bust" operation: the CRI, with a marked bill, would approach the target and make a buy, at which point the police would swoop down and arrest the dealer. One of the buys was with someone on a bike; the bicyclist then took off, but shortly thereafter, the police found the defendant sitting on a bike, and arrested him. They found neither drugs nor the marked money on him.

At trial, the detective testified that he could identify the defendant as the man who'd sold the drugs to the CRI, although there was some discrepancy in that testimony: at one point he stated he'd been 400 feet from the transaction, and later testified that the distance was 1/10th that.The CRI, of course, was nowhere to be found: the state had refused to disclose his identity, and he was not called as a witness. One detective testified that the CRI had in fact identified the defendant, and the objection to that was sustained. Despite that, the prosecutor asked the second detective whether the CRI had identified the defendant. Although that objection was also sustained, the jury apparently experienced some confusion over it: during deliberations, they sent a question asking "Was it officer Hall who made the ID, or both Officer Hall and the CRI?"

The prosecutor also asked the detective whether the defendant had been given his Miranda rights and, for no apparent purpose, asked if the defendant had made a statement. He had not.  Judge McMonagle, with Judge Karpinski concurring, felt that this was sufficient evidence of error and prosecutorial misconduct to warrant reversal. Judge Kilbane dissented.

I say "unusual result" because a reversal for prosecutorial misconduct of this nature - of any nature, really - is as rare as an insightful comment from Jessica Simpson. Even the majority conceded that a reversal for an "isolated incident" of a Doyle v. Ohio violation - eliciting that defendant had exercised his Miranda rights - is rare.  In fact, one of the more helpful things, from the defense attorney's viepoint, is the court's handling of State v. Ervin, one of the first to enunciate the "isolated incident" view.  The Person court notes that in Ervin and its progeny, the evidence of guilt was overwhelming, unlike the case before it.  It noted further that "Ervin should not be read or understood to stand for the proposition that the State gets one free constitutional violation of a defendant's Fifth Amendment right not to be compelled to be a witness against himself."

One shouldn't make too much of Person; obviously, the court was influenced by the closeness of the case, and the prosecution's attempt to get into evidence the CRI's identification, as well as the jury's obvious reaction to that evidence.  The result is a welcome one, though.  After all, the prosecutor's inquiry into the defendant's exercise of his Miranda rights was a constitutional violation, and in a case like this, it's hard to see how any error would be harmless beyond a reasonable doubt.

At any rate, if you've got an appeal with a Doyle issue, this is a good case to have.

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