Does the Fifth Amendment prohibit the prosecution from commenting on the state of the evidence?

California, United States of America


The following excerpt is from People v. Venegas, A133996 (Cal. App. 2013):

"[T]he Fifth Amendment, . . . in its bearing on the States by reason of the Fourteenth Amendment, forbids . . . comment by the prosecution on the accused's silence." (Griffin v. California (1965) 380 U.S. 609, 615.) "Under the rule in Griffin, error is committed whenever the prosecutor or the court comments, either directly or indirectly, upon defendant's failure to testify in his defense. It is well established, however, that the rule prohibiting comment on defendant's silence does not extend to comments on the state of the evidence . . . ." (People v. Medina (1995) 11 Cal.4th 694, 755.)

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