In what circumstances will a prosecutor be found to have improperly argued to the jury that the defense failed to produce the witness?
California, United States of America
The following excerpt is from People v. Anaya, C071288 (Cal. App. 2014):
In People v. Frohner, supra, 65 Cal.App.3d 94, on which defendant relies, the court found that the prosecutor committed misconduct when he allowed the jury to infer that the defendant purposely failed to call a witness when in fact the prosecutor had a duty to make reasonable efforts to produce the witness and failed to fulfill that duty. (Id. at p. 109.) Under these circumstances, the court found it "inexcusable" that the prosecutor argued to the jury that the defense failed to produce the witness. Coupled with
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the prosecution's own failure to produce the witness, the comment substantially prejudiced the defendant. (Ibid.)
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