Can a prosecutor comment on a defendant's failure to testify on his own behalf?

California, United States of America


The following excerpt is from People v. McLaurin, B250278 (Cal. App. 2015):

A prosecutor may not comment on a defendant's failure to testify on his or her own behalf. (Griffin v. California, supra, 380 U.S. at p. 615.) "Pursuant to Griffin, it is error for a prosecutor to state that certain evidence is uncontradicted or unrefuted when that evidence could not be contradicted or refuted by anyone other than the defendant testifying on his or her own behalf. [Citations.]" (People v. Hughes (2002) 27 Cal.4th 287, 371-372.) It is also "error for the prosecution to refer to the absence of evidence that only the defendant's testimony could provide. [Citation.]" (Id. at p. 372.)

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