Is a prosecutor wrong to allude to the defense's failure to present exculpatory evidence?

California, United States of America


The following excerpt is from People v. Stirnaman, C057223 (Cal. App. 1/29/2009), C057223 (Cal. App. 2009):

This was not misconduct. "`As a general principle, prosecutors may allude to the defense's failure to present exculpatory evidence' [citation], and such commentary does not . . . erroneously imply that the defendant bears a burden of proof.'" (People v. Lewis (2004) 117 Cal.App.4th 246, 257.) The People had no duty to fingerprint the water pump, and the argument that the defense could have done so was a fair response to the defense argument. The People did not argue defendant was obligated to fingerprint the pump; therefore, it did not shift the burden of proof to defendant. (Cf. People v. Woods (2006) 146 Cal.App.4th 106, 111-114 [prosecutor asserted defense had obligation to produce impeachment evidence; conviction reversed].)

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