Can a prosecutor respond to a defense argument by identifying omissions in the defense case?

California, United States of America

The following excerpt is from People v. Rosales, 2d Crim. No. B205865 (Cal. App. 12/30/2008), 2d Crim. No. B205865. (Cal. App. 2008):

Here there was no misconduct. "[P]rosecutorial comment upon a defendant's failure `to introduce material evidence or to call logical witnesses' is not improper." (People v. Wash (1993) 6 Cal.4th 215, 263.) The prosecutor had the right to respond to the defense argument and identify omissions in the defense case. He could explain to jurors why the lack of fingerprints on a beer bottle did not refute Sophia's testimony. His remarks were "within the broad range of permissible comment on the evidence." (Ibid.) He expressly and correctly told jurors that the prosecution had the burden of proof.

The judgment is affirmed.

We concur:

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