California, United States of America
The following excerpt is from People v. Greenberger, 58 Cal.App.4th 298, 68 Cal.Rptr.2d 61 (Cal. App. 1997):
22 The specially concurring opinion in De Luna provides an accurate analysis of the situation that would result if the quoted dictum from the De Luna majority opinion were to be given effect: "If [the codefendant], or others similarly situated, claims the right which the majority holds that he has to comment on the failure of De Luna to testify, a mistrial will be required at the instance of his co-defendant who did not take the stand. In addition, severance in advance of trial may be required where there is a representation to the court that one codefendant does not expect to take the stand while another or others do expect to testify, and claim their right to comment upon the failure of the other to testify. This would eliminate joint trials, or vest in a defendant the right to a mistrial during final arguments, or in the alternative create built-in reversible error, all in the discretion of the defendants. The law contemplates no such end." (DeLuna v. United States, supra, 308 F.2d at p. 156.)
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