In a sexual assault case, is a defendant permitted to refer to his failure to introduce evidence that was excluded on the prosecutor's motion?

California, United States of America


The following excerpt is from People v. EVANS, A126898, Contra Costa County Super. Ct. No. 050703165 (Cal. App. 2011):

Defendant claims that the prosecutor referred to his failure to introduce evidence that was in fact excluded on the prosecutor's motion. (People v. Daggett, supra, 225 Cal.App.3d at pp. 757-758 [prosecutor took unfair advantage of trial court's evidentiary ruling when asking jurors to draw inference they might not have drawn had judge admitted relevant evidence].) However, nowhere in defendant's opening brief does he specify what excluded "evidence" was the subject of the prosecutor's argument. When read in context, it is clear that the prosecutor's closing argument was a permissible reference to the absence of rape allegations in the various reports that had been prepared about defendant, a subject of lengthy cross-examination of defendant's key witness at the sanity phase of the trial.

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