Can a prosecutor argue improperly concerning a defendant's failure to testify?

California, United States of America


The following excerpt is from People v. Pech Sok, F059993, Super. Ct. No. F08906366 (Cal. App. 2012):

Appellant contends the prosecutor argued improperly concerning his failure to testify. (Griffin v. California (1965) 380 U.S. 609 (Griffin) [Fifth Amendment forbids prosecutor from commenting on accused's silence].) Directing a jury's attention to a defendant's failure to testify at trial runs the risk of inviting the jury to consider the defendant's silence as evidence of guilt. (Id. at pp. 614-615.) When considering a claim of Griffin error, we must determine whether there is a reasonable likelihood that the jury construed the prosecutor's argument as a comment on the defendant's failure to testify at trial. (People v. Clair (1992) 2 Cal.4th 629, 663.)

The comments to which appellant objects occurred during closing rebuttal argument. The prosecutor began by stating:

After reviewing the evidence against appellant, the prosecutor concluded:

Page 24

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