Patterson v. State: Wyoming Abolishes the “Reference vs. Comment” Distinction and Reaffirms Automatic Reversal for Prosecutorial Remarks on a Defendant’s Silence

Introduction

In William Frederick Patterson v. State of Wyoming, 2025 WY 30 (Wyo. Mar. 20, 2025), the Wyoming Supreme Court reversed a conviction for second-degree sexual abuse of a minor after concluding the prosecutor impermissibly commented on the defendant’s exercise of his constitutional right to remain silent during opening statements. The Court used the case to clarify and streamline its “right to silence” jurisprudence under article 1, section 11 of the Wyoming Constitution.

Most notably, the Court:

Reaffirmed that any improper prosecutorial comment on a defendant’s exercise of the right to remain silent is prejudicial per se (i.e., structural error) requiring automatic reversal.
Eliminated the long-standing, but confusing, “comment” versus “reference” dichotomy and rejected any role for prejudice analysis in deciding whether an improper comment occurred.
Clarified that the determination is an objective, contextual inquiry, independent of the prosecutor’s subjective intent.

The decision tightens the constitutional protection afforded to defendants in Wyoming, significantly affecting prosecutorial practice statewide.

Summary of the Opinion

The Court held that the prosecutor’s statement in opening—“I will let you know a request to Mr. Patterson to discuss things was made. He declined, which is his right to do so.”—was an impermissible comment on Mr. Patterson’s exercise of his constitutional right to remain silent. Because Wyoming treats such comments as structural error, the Court reversed the conviction and remanded for a new trial.

In the process, the Court overruled prior Wyoming cases to the extent they:

Distinguished between a reversible “comment” on silence and a non-reversible “reference” to silence subject to prejudice analysis; and
Applied prejudice-based factors to decide whether an improper comment occurred.

The Court reaffirmed Westmark v. State, 693 P.2d 220 (Wyo. 1984) and Clenin v. State, 573 P.2d 844 (Wyo. 1978), and disapproved the contrary approach reflected in Parkhurst v. State, 628 P.2d 1369 (Wyo. 1981), Beartusk v. State, 6 P.3d 138 (Wyo. 2000), and their progeny, to the extent they invoked prejudice to define or evaluate right-to-silence violations.

Case Background

The case arises from allegations that Mr. Patterson, the live-in boyfriend of the children’s aunt, sexually abused four-year-old twins in 2019. Initial forensic interviews were mixed; the prosecution was declined at that time. In 2022, the twins (then seven) were reinterviewed and both described acts constituting sexual abuse. The State charged Mr. Patterson with four counts (second- and third-degree sexual abuse as to each child).

At trial in January 2024, the jury acquitted Mr. Patterson on both counts related to one twin (BR) and convicted him on both counts related to the other (BL). The district court orally merged the convictions and sentenced Mr. Patterson to 14–20 years on the second-degree count; the written judgment did not fully conform to the oral pronouncement. On appeal, Mr. Patterson challenged, among other things, a remark in the State’s opening that he declined an interview with law enforcement. The Wyoming Supreme Court found that remark dispositive, reversed the conviction, and remanded for a new trial. The judgment/sentencing inconsistency became moot in light of the reversal.

Key Holdings

Under article 1, section 11 of the Wyoming Constitution, an improper prosecutorial comment on a defendant’s exercise of the right to remain silent is prejudicial per se and requires reversal. This is structural error.
To decide whether a prosecutor made an improper comment, courts:
- Apply an objective, contextual analysis, not subjective intent;
- Ask whether the State used the defendant’s silence to its advantage as substantive evidence of guilt or to suggest that the silence was an admission of guilt;
- Do not consider prejudice or apply “harmless error” analysis.
The “comment versus reference” dichotomy and any reliance on prejudice factors to determine whether an improper comment occurred are overruled.
A curative instruction cannot remedy an impermissible comment on a defendant’s silence.

Analysis

Precedents Cited and Their Influence

Clenin v. State, 573 P.2d 844 (Wyo. 1978)

Clenin established the foundational Wyoming rule: any prosecutorial comment on a defendant’s exercise of the right to remain silent is prejudicial per se under article 1, section 11, requiring automatic reversal. Clenin thus went beyond federal Fifth Amendment doctrine by adopting a stronger state constitutional protection.

Parkhurst v. State, 628 P.2d 1369 (Wyo. 1981)

Parkhurst attempted to temper Clenin by distinguishing between a “comment” on silence and a mere “reference” to silence. While Parkhurst ultimately found no improper comment on the facts (ending the inquiry), it introduced dicta suggesting that mere references would be non-reversible absent a showing of prejudice. Patterson identifies this as a legally unsound “false dichotomy.”

Richter v. State, 642 P.2d 1269 (Wyo. 1982), overruled by Westmark

Richter briefly supplanted Clenin by applying harmless error analysis to right-to-silence comments. It was short-lived and expressly overruled two years later.

Westmark v. State, 693 P.2d 220 (Wyo. 1984)

Westmark reinstated Clenin’s per se reversal rule, explicitly holding that “any comment upon the accused’s exercise of his or her right to remain silent is prejudicial error which will entitle the accused to a reversal.” Patterson reaffirms Westmark as controlling Wyoming law.

Tortolito v. State, 901 P.2d 387 (Wyo. 1995)

Tortolito clarified that the right to silence is self-executing and exists at all times—before arrest, at arrest, after arrest; before and after Miranda warnings. Prosecutorial use of pretrial silence to infer guilt is constitutionally prohibited. Patterson relies on Tortolito’s breadth to protect pre-charge and pre-Miranda silence, as occurred here.

Beartusk v. State, 6 P.3d 138 (Wyo. 2000) and progeny

Beartusk and later cases (e.g., Lancaster, Teniente, Abeyta, Spinner, Bogard) drifted toward using “prejudice factors” (e.g., whether the prosecutor emphasized or exploited the silence) to decide whether a comment occurred. Patterson expressly disapproves that approach. The Court holds that prejudice plays no role in deciding whether a comment is improper; those cases are overruled to that extent.

Lessard v. State, 2007 WY 89, 158 P.3d 698

Lessard offers the operative definition of an improper comment: when the prosecutor uses a defendant’s silence to the State’s advantage as substantive evidence of guilt or to suggest that silence was an admission of guilt. Patterson adopts and applies this definition.

Causey v. State, 2009 WY 111, 215 P.3d 287; Person v. State, 2023 WY 26, 526 P.3d 61; Yazzie v. State, 2021 WY 72, 487 P.3d 555

These cases reaffirm that comments on silence are inherently prejudicial and that structural errors warrant automatic reversal. Patterson aligns with and strengthens this line of authority.

Robinson v. State, 11 P.3d 361 (Wyo. 2000); Gonzalez-Ochoa v. State, 2014 WY 14, 317 P.3d 599; Hughes v. State, 658 P.2d 1294 (Wyo. 1983); Gomez v. State, 718 P.2d 53 (Wyo. 1986)

Robinson: The Court must review the record as a whole and consider context.
Gonzalez-Ochoa: Courts must find error before assessing prejudice; in the right-to-silence context, prejudice is not assessed if a comment is improper.
Hughes: Reinforces non-penalization for invoking the Fifth Amendment; Patterson extends under state constitution.
Gomez: Cautionary instructions cannot cure an impermissible comment on silence; Patterson relies on this to reject cure by instruction.

Legal Reasoning

Standard of Review
- While the denial of a mistrial is reviewed for abuse of discretion, the underlying constitutional question—whether the prosecutor improperly commented on the right to silence—receives de novo review when preserved by objection (as here).
Clarifying the Law
- The Court expressly rejects the “comment vs. reference” dichotomy and the use of prejudice factors to decide whether a comment occurred. If a statement is not an improper comment, there is no error; if it is, reversal is automatic.
- Improper comment is defined functionally: did the State use the defendant’s silence to its advantage as substantive evidence or to suggest the silence signified guilt? Subjective intent is irrelevant; the inquiry is objective and contextual.
Application to Patterson
- In opening, the prosecutor said: “I will let you know a request to Mr. Patterson to discuss things was made. He declined, which is his right to do so.”
- Contextually, this contrasted “cooperating” witnesses (the complainants, caregivers, and aunt) with Mr. Patterson’s refusal—inviting the inference that he remained silent because he was guilty.
- That use of silence to suggest guilt is an impermissible comment. The remark occurred during opening, used the refusal to speak to advance the State’s narrative, and highlighted that only the accused declined to talk.
- The trial court’s curative steps (sustaining the objection, instructing the jury to disregard, and directing the prosecutor to move on) could not cure the structural violation. The Court cites Gomez to confirm that instructions cannot undo the presumed harm from such a comment.

Impact

Patterson reshapes Wyoming’s right-to-silence law in several consequential ways:

Elimination of the “Reference” Safe Harbor: Prosecutors can no longer argue that a brief, isolated, or “mere” reference to silence is non-reversible absent prejudice. The only question is whether the reference functionally uses silence to imply guilt; if so, reversal is automatic.
No Harmless-Error Escape Hatch: Unlike federal doctrine (which often uses harmless error analysis for Doyle-type violations), Wyoming’s state constitutional rule mandates reversal without any prejudice analysis once a comment is found improper.
Opening Statements and “Completeness of Investigation” Arguments: Prosecutors must avoid telling juries that the defendant declined to be interviewed—even to preempt defense arguments of an incomplete investigation. Patterson rejects the idea that “context” or “intent” to explain investigative completeness can justify such a remark.
Objective Contextual Test: Courts will look at whether the statement, in context, invites an inference of guilt from silence—without considering the prosecutor’s subjective intent, the severity or pervasiveness of the remark, or whether the State “exploited” the point later.
Training and Trial Practice: Law enforcement and prosecutors must be trained to avoid referencing a suspect’s refusal to talk. Common pitfalls include:
- “He declined to be interviewed,” “He didn’t want to answer further questions,” or “He lawyered up” as part of the State’s case-in-chief.
- Examining officers about attempts to contact the defendant where the predictable answer is that the defendant declined to speak.
- Using silence to “fill gaps” in a narrative under the guise of “thorough investigation.”
Defense Strategy: Defense counsel should vigilantly object to any State-elicited remark that references the client’s silence. Even brief mentions in opening or through an officer’s testimony can require reversal if they imply guilt.
Future Litigation: The decision clarifies that when a defendant chooses to speak, the State may explore what was said; and when a reference to silence is elicited by the defense (and not exploited by the State to imply guilt), no impermissible comment occurs. But the safe course for the State is to steer well clear of any mention of the defendant’s refusal to talk.

Complex Concepts Simplified

What is an “Improper Comment” on Silence?

An improper comment occurs when the prosecutor tells the jury—explicitly or implicitly—that the defendant’s refusal to speak with law enforcement indicates guilt. The classic markers are statements like “he refused to talk” or “he didn’t respond,” used to support the State’s case.

Why is This Structural Error (Automatic Reversal)?

Wyoming treats such comments as structural because they inherently penalize a constitutional right central to a fair trial and because the harm is difficult, if not impossible, to measure or cure with a jury instruction. The very point of the remark is to invite a forbidden inference: silence equals guilt.

State vs. Federal Constitutional Standards

The Wyoming Constitution can provide greater protections than the federal Constitution. Wyoming has chosen a stricter rule: once a prosecutor improperly comments on a defendant’s silence, reversal is automatic, without any consideration of harmlessness or prejudice.

Objective vs. Subjective Intent

The Court does not look to what the prosecutor meant to do. It looks to how the statement would operate in context for a reasonable listener. So even a remark prefaced with “which is his right” can still be improper if the context implies guilt from the refusal.

Practical Guidance and Examples

Prosecutors: Do Not Say

“We tried to interview the defendant. He declined.”
“When confronted by detectives, the defendant stopped answering questions.”
“Only the defendant refused to cooperate.”

Safer Alternatives

Describe investigative steps without referencing the defendant’s silence. For example: “Detective Good interviewed A, B, and C, collected physical evidence, and reviewed video footage.”
If the defendant spoke voluntarily, it is ordinarily permissible to discuss what he said. Focus on statements, not refusals.
If defense counsel opens the door by eliciting a reference to silence, the State should avoid exploiting that reference to suggest guilt.

Defense Counsel: Immediate Action

Object contemporaneously to any reference to your client’s refusal to speak, including in opening statements.
Move for a mistrial; even if denied, the issue is preserved for de novo review on appeal. Under Patterson, a single improper comment requires reversal.

How the Court Applied the Rule in Patterson

The prosecutor’s opening contrasted cooperating witnesses with Mr. Patterson and highlighted his refusal to speak. In context, this invited the forbidden inference—he stayed silent because he was guilty. The trial court’s curative instruction did not save the case; the error is structural. The conviction was therefore reversed and remanded for a new trial.

Conclusion

Patterson is a watershed in Wyoming’s right-to-silence jurisprudence. It decisively:

Reaffirms automatic reversal for improper prosecutorial comments on silence under the Wyoming Constitution;
Eliminates the confusing “reference vs. comment” distinction and any prejudice analysis at the threshold stage;
Sets an objective, contextual standard that focuses on whether the State used silence to imply guilt.

For prosecutors, the message is straightforward: do not mention a defendant’s refusal to speak—at any stage, for any reason, and in any posture of trial—unless the law and record make abundantly clear that the defendant’s silence is not being used to suggest guilt. For defense counsel, Patterson supplies a powerful, clear ground for objection and reversal when the State crosses that line. In Wyoming, the right to remain silent is not merely protected; it is enforced with the strongest remedy available—automatic reversal—whenever the State improperly invites the jury to equate silence with guilt.