How have courts treated the improper suggestion that a defendant should have testified and expressed remorse?

California, United States of America

The following excerpt is from People v. Boyette, 127 Cal.Rptr.2d 544, 29 Cal.4th 381, 58 P.3d 391 (Cal. 2002):

Although we find one instance in which the prosecutor improperly suggested that defendant should have testified and expressed remorse, it was a brief and solitary comment. The prosecutor later in her argument extensively emphasized defendant's lack of remorse without any objection by the defense, rendering any earlier misconduct harmless. "`[I]ndirect, brief and mild references to a defendant's failure to testify, without any suggestion that an inference of guilt be drawn therefrom, are uniformly held to constitute harmless error.'" (People v. Bradford (1997) 15 Cal.4th 1229, 1340, 65 Cal.Rptr.2d 145, 939 P.2d 259.)¹⁷

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