California, United States of America
The following excerpt is from People v. Santana, H044594 (Cal. App. 2019):
Based on the prosecutor's closing argument, defendant now argues that defense counsel rendered ineffective assistance of counsel by failing to object to Griffin error. (See Griffin v. California (1965) 380 U.S. 609 (Griffin).) In Griffin, the United States Supreme Court held that a defendant's refusal to testify at trial may not be used as evidence of his guilt. (Id. at p. 614.) Consequently, the Fifth Amendment right against self-incrimination, applicable to the states through the Fourteenth Amendment (Malloy v. Hogan (1964) 378 U.S. 1, 6, 8), prohibits both prosecutorial comment on a criminal defendant's failure to testify at trial and jury instructions that such silence is evidence of guilt. (Griffin, supra, at p. 615.)
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