Can a prosecutor comment on the failure of a defendant to testify?

MultiRegion, United States of America

The following excerpt is from United States v. Mickens, 20-258 L, 20-462, 20-630 (2nd Cir. 2021):

It is commonplace that, in pursuing a prosecution, the Government may not "comment on the failure of the defendant to testify . . . or suggest that the defendant has any burden of proof or any obligation to adduce any evidence whatsoever." United States v. Fell, 531 F.3d 197, 221 (2d Cir. 2008). Still, "[a] prosecutor's commentary about a defendant's lack of evidence becomes prejudicial only if the jury would naturally and necessarily interpret the Government's summation as a comment on the defendant's failure to testify or if the evidence that the defendant has not produced was exclusively in his control." Daugerdas, 837 F.3d at 227.

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