Does a prosecutor comment on a defendant's refusal to testify change the burden of proof?

MultiRegion, United States of America

The following excerpt is from U.S. v. Williams, 990 F.2d 507 (9th Cir. 1993):

830 F.2d 1382, 1391 (7th Cir.1987), cert. denied, 484 U.S. 1068, 108 S.Ct. 1034, 98 L.Ed.2d 998 (1988). Noting that "[a]n inference is a way to carry the burden, and no more changes it than does damning evidence," the Sblendorio court found "none of these meanings actually changes the burden ... unless the prosecutor's comment uses the defendant's [Fifth Amendment] privilege as evidence against him...." Id.; see also United States v. Dahdah, 864 F.2d 55, 59 (7th Cir.1988), ("commenting on a defendant's failure to call a witness does not have the effect of shifting the burden of proof unless it taxes the exercise of the defendant's right not to testify"), cert. denied, 489 U.S. 1087, 109 S.Ct. 1550, 103 L.Ed.2d 853 (1989).

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