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

        Part VI(B) 5. Prosecutor's Comment On Defendant's Failure To Present Exculpatory Evidence

        Part VI(B) 5a    Comment On Defendant’s Failure To Present Evidence: General Principles

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part VI(B) 5a    Comment On Defendant’s Failure To Present Evidence: General Principles

CAVEAT: See Publication Preface and Caveats.

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18.4 Failure Of Defendant To Present Evidence

The prosecutor may properly call the jury's attention to the defendant's failure to present alibi witnesses in support of his or her alibi defense.

United States v. Higginbotham, 539 F.2d 17 (9th Cir. 1976)

The prosecutor may comment on a defendant's failure to explain evidence against him or her after the defendant has waived the privilege by taking the witness stand.

Caminetti v. United States, 242 U.S. 470 (1917)

The prosecutor may properly comment on the defendant's failure to present exculpatory evidence as long as the prosecutor does not call attention to the defendant's failure to testify.

United States v. Fleishman, 684 F.2d 1329 (9th Cir. 1982), overruled on other grounds by United States v. Ibarra-Alcarez, 830 F.2d 968 (9th Cir. 1987)
United States v. Soulard, 730 F.2d 1292 (9th Cir. 1984)
Moore v. Wyrick, 760 F.2d 884 (8th Cir. 1985)
United States v. Kessi, 868 F.2d 1097 (9th Cir. 1989)

A distinction exists between a comment by the prosecutor concerning failure of the "defense" to counter or explain evidence and failure of the "defendant" to do so. A comment about the former does not violate a defendant's Fifth Amendment rights.

United States v. Fogg, 652 F.2d 551 (5th Cir. 1981)
United States v. Castillo, 866 F.2d 1071 (9th Cir. 1988)