What is the current state of the law on the prosecution's comments on the Fifth Amendment?

California, United States of America


The following excerpt is from People v. Salman, 2d Crim. No. B292492 (Cal. App. 2020):

"[T]he Fifth Amendment[] forbids either comment by the prosecution on the accused's silence or instructions by the court that such silence is evidence of guilt." (Griffin v. California, supra, 380 U.S. at p. 615.) "The prosecutor's argument cannot refer to the absence of evidence that only the defendant's testimony could provide." (People v. Brady (2010) 50 Cal.4th 547, 565-566.) "The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses." (Id. at p. 566.)

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