What is the test for commenting on the failure to call a logical witness?

California, United States of America


The following excerpt is from People v. Pineda, B270379 (Cal. App. 2017):

"Comment on the failure to call a logical witness is proper. [Citations.]" (People v. Bell (1989) 49 Cal.3d 502, 539.) "Misconduct claims [] have been rejected . . . where the prosecutor criticizes the defense theory of the case because it lacks evidentiary support [citation]." (People v. Bemore (2000) 22 Cal.4th 809, 846.) " '[A] prosecutor may argue to a jury that a defendant has not brought forth evidence to corroborate an essential part of [the] defensive story' [citation] . . . ." (People v. Gaines (1997) 54 Cal.App.4th 821, 825.)

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