Can a prosecutor comment on a defendant's decision not to testify?

California, United States of America


The following excerpt is from People v. Rodriguez, B279557 (Cal. App. 2017):

Rodriguez argues that the prosecutor's rebuttal statements amounted to an improper comment on his decision not to testify. Rodriguez acknowledges that the prosecution may permissibly comment on the defense's failure to introduce material evidence. However, Rodriguez cites the principle that a prosecutor can violate a defendant's Fifth Amendment privilege against self-incrimination by arguing "to the jury that certain testimony or evidence is uncontradicted, if such contradiction or denial could be provided only by the defendant, who therefore would be required to take the witness stand." (People v. Bradford, supra, 15 Cal.4th at p. 1339, citing Griffin, supra, 380 U.S. 609.)

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