Can a prosecutor comment on a defendant's failure to present evidence, thereby shifting the burden of proof to the defense?

California, United States of America


The following excerpt is from People v. Flores, E053844 (Cal. App. 2012):

Defendant complains that these two statements constituted Griffin error because the prosecutor indirectly commented on defendant's failure to present evidence, thereby shifting the burden of proof to the defense. Griffin forbids prosecution comment on a defendant's failure to testify in his own behalf; the case does not, however, forbid all comment "upon the failure of the defense to introduce material evidence or to call anticipated witnesses." (People v. Bradford, supra, 15 Cal.4th at p. 1339.) Defendant argues that the two statements improperly implied that defendant had the burden of producing evidence proving defendant's innocence.

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