In what circumstances have the courts allowed the prosecution to argue that the evidence against the accused has not been retested?

In People v. Cook (2006) 39 Cal.4th 566, a criminalist testified that the bullets used in two murders had been fired from the same weapon. (Id. at p. 607.) The court held that the prosecutor did not impermissibly seek to shift the burden of proof by asking the criminalist "if the defense could have subjected the autopsy bullets to its own testing by an independent laboratory." The court observed that "the prosecutor did not ask whether the defense had a duty to do independent testing, merely whether the defense had an opportunity to do so. [Citation.]" (Ibid.) The court concluded that "[p]ointing out that contested physical evidence could be retested did not shift the burden of proof." (Ibid.)

In People v. Bradford, supra, 15 Cal.4th 1229, the prosecutor pointed out in argument that "'no evidence has been introduced by [the defense] on [the] issue [of whether a stain on a mat in the trunk of the defendant's vehicle was blood].'" (Id. at p.

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