Can a prosecutor make comments on the state of the evidence or on the defense's failure to call logical witnesses?

California, United States of America


The following excerpt is from People v. Lampley, B292186 (Cal. App. 2020):

"Comments on the state of the evidence or on the defense's failure to call logical witnesses, introduce material evidence, or rebut the People's case are generally permissible. [Citation.] However, a prosecutor may not suggest that 'a defendant has a duty or burden to produce evidence, or a duty or burden to prove his or her innocence.'" (People v. Woods (2006) 146 Cal.App.4th 106, 112.)

Here, the challenged remarks constituted a fair comment on the evidence; they did not amount to misconduct.

In urging reversal, defendant contends that the prosecutor committed misconduct by arguing that his invocations of his right to remain silent were evidence of his guilt. He is mistaken. When a defendant receives a Miranda warning, the police inform him that his silence, or refusal to answer questions, will not be used against him. (People v. Lewis (2004) 117 Cal.App.4th 246, 256.) Thus, a prosecutor's comments on a defendant's silence or

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