MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
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Part VI. Argument - Part VI(B). Final Argument

        Part VI(B) 4. Prosecutor's Comment On Defendant's Failure To Testify

        Part VI(B) 4a    Direct Reference To Defendant's Failure To Testify: General Principles
        Part VI(B) 4b    Indirect Reference To Defendant's Failure To Testify: General Principles

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part VI(B) 4a    Direct Reference To Defendant's Failure To Testify: General Principles

CAVEAT: See Publication Preface and Caveats.

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18.3 Failure Of Defendant To Testify

A prosecutor's direct reference to a defendant's failure to testify violates the defendant's privilege against compelled self-incrimination.

Griffin v. California, 380 U.S. 609 (1965)
But see Portuondo v. Agard, 529 U.S. 61 (2000) (a prosecutor’s comment that a defendant who testified had the opportunity to tailor his testimony after hearing other witnesses does not violate the defendant’s Fifth and Sixth Amendment rights)

However, the Supreme Court ruled that a prosecutor’s comment that "[the defendant] could have taken the stand and explained it to you, anything he wanted to" did not violate the Fifth Amendment because it was a fair response to an argument initiated by defense counsel to the effect that counsel’s nontestifying client had not been given a chance to explain his side of the story.

United States v. Robinson, 485 U.S. 25 (1988)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part VI(B) 4b    Indirect Reference To Defendant's Failure To Testify: General Principles

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

25.14.2 Adoptive Admission (Pretrial Silence/Doyle): Doyle Error (Comment On Defendant’s Pretrial Silence)

The prosecuting attorney must strictly observe the obligation to avoid any adverse comment to the jury on the defendant's failure to testify. The test is whether, in the circumstances of the case, the language used was manifestly intended to be a comment on the failure of the accused to testify or was of such character that the jury would naturally and necessarily take it to be so.

States v. Williams, 521 F.2d 950 (D.C. Cir. 1975)
United States v. Palacios, 612 F.2d 972 (5th Cir. 1980)
Smith v. Fairman, 862 F.2d 630 (7th Cir. 1988)
United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988)

A prosecutor's closing argument improperly emphasizes the defendant's failure to testify when the prosecutor argues that critical facts in the case have not been controverted and those facts could not have been controverted by anyone other than the defendant.

Runnels v. Hess, 653 F.2d 1359 (10th Cir. 1981)
Lent v. Wells, 861 F.2d 972 (6th Cir. 1988)

Oblique comments on a defendant's failure to testify, if sufficiently suggestive, are as unlawful as direct comments.

United States v. Brown, 546 F.2d 166 (5th Cir. 1977)

In closing argument, the prosecutor may refer to government evidence as uncontradicted if witnesses other than the defendant could have contradicted the evidence. It is impermissible to state that the evidence was uncontradicted if the defendant was the only person who could have contradicted the evidence.

United States v. Sorzano, 602 F.2d 1201 (5th Cir. 1979)
Runnels v. Hess, 653 F.2d 1359 (10th Cir. 1981)
Raper v. Mintzes, 706 F.2d 161 (6th Cir. 1983)
Williams v. Lane, 826 F.2d 654 (7th Cir. 1987)