Can a prosecutor question a defendant about his failure to mention his alibi to the jury?

In People v. Galloway (1979) 100 Cal.App.3d 551, 160 Cal.Rptr. 914, the defendant was convicted of robbery. He asserted an alibi defense but the [234 Cal.App.3d 1457] prosecutor questioned him about his failure to mention his alibi to anyone prior to the trial and commented on that failure in his closing argument to the jury. This court reversed holding it was error for the prosecutor to question defendant about his failure to mention his alibi prior to the trial because it is fundamentally unfair to allow an arrested person's silence following constitutional warnings of his right to silence to be used to impeach an explanation subsequently offered at trial. We further held that because the evidence against defendant was not overwhelming and because the prosecutor's misconduct touched on defendant's sole defense, the error was prejudicial. (Id. at pp. 556-560, 160 Cal.Rptr. 914.)

The unfairness in commenting on a defendant's silence was also noted by the court in United States v. Hale (1975) 422 U.S. 171, 180, 95 S.Ct. 2133, 2138, 45 L.Ed.2d 99: