Does a prosecutor's comment on a defendant's silence violate the Fifth Amendment?

California, United States of America


The following excerpt is from People v. Johnson, 190 Cal.Rptr.3d 536, 353 P.3d 266, 61 Cal.4th 734 (Cal. 2015):

Defendant acknowledges that our case law establishes that the prosecutor's argument was proper. But he insists, however, that the argument was improper under the facts of this case because the prosecutor seized upon a matter for which defendant put forth no evidence, thereby violating fundamental fairness and due process. We construe defendant's argument to mean that the prosecutor, in this context, improperly commented on his silence, in violation of Griffin v. California (1965) 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106, which holds that a prosecutor's comment on a defendant's failure to testify violates the Fifth Amendment. But we have previously rejected this kind of claim, explaining that the prosecutor simply noted the lack of evidence and did not refer to defendant's silence and that a prosecutor is entitled during closing argument to highlight a defendant's lack of remorse, and doing so does not necessarily violate Griffin. (People v. Brady (2010) 50 Cal.4th 547, 585, 113 Cal.Rptr.3d 458, 236 P.3d 312.)

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