What is the impact of a prosecutor's reference to a defendant's lack of remorse at the penalty phase?

California, United States of America


The following excerpt is from People v. Lewis, 106 Cal.Rptr.2d 629, 22 P.3d 392, 25 Cal.4th 610 (Cal. 2001):

Defendant acknowledges that we have consistently rejected claims of prosecutorial misconduct based on a prosecutor's reference to the defendant's lack of remorse. He argues, however, that his case is distinguishable from our prior decisions because his trial counsel presented no testimony or other mitigating evidence at the penalty phase. He points out that in People v. Beardslee (1991) 53 Cal.3d 68, 279 Cal.Rptr. 276, 806 P.2d 1311, we concluded that the prosecutor was entitled to comment on defendant's lack of remorse after the defense had called three witnesses at the penalty phase who testified on that subject. (Id. at p. 114, 279 Cal. Rptr. 276, 806 P.2d 1311.) Here, defendant contends, the prosecutor's comment infringed his constitutional rights not to present evidence and to remain silent.

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