In what circumstances has a prosecutor been found not guilty of misconduct in a murder trial for failing to call a defense?

California, United States of America


The following excerpt is from People v. Young, A138043 (Cal. App. 2014):

the prosecutor said: " 'Ladies and gentlemen, you have now heard the entirety of the case . . . . Obviously, if there has been some or is some defense to this case, you'd either have heard it by now or for some reason nobody's talking about it.' " In People v. Morris (1988) 46 Cal.3d 1, 36, disapproved on other grounds by In re Sassounian (1995) 9 Cal.4th 535, 543, footnote 5, the prosecutor did not engage in misconduct when he stated there was " 'not a shred of evidence to suggest that anybody else did the killing,' " and when he stated, " 'put yourself in the position of being a defendant and you can bet your boots that if you had anything to offer by way of evidence, by way of alibi, that you would offer it,' " and " 'You don't have it.' " In each of these cases, the prosecutor made no reference to the defendant's decision not to testify, but instead, permissibly commented on the defendant's failure to offer any material evidence to support his asserted defenses. (See People v. Gonzalez (2012) 54 Cal.4th 1234, 1275 ["As for the prosecutor's reference to witnesses not called, it is neither unusual nor improper to comment on the failure to call logical witnesses"].)

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