When a prosecutor makes a closing argument about the failure of the defense to introduce material evidence, what is the state of the evidence?

California, United States of America


The following excerpt is from People v. Jolley, B261137 (Cal. App. 2017):

But these comments were entirely proper. A "prosecutor may comment on the state of the evidence, including the failure of the defense to introduce material evidence or to call witnesses." (People v. Mincey (1992) 2 Cal.4th 408, 446.) "The Fifth Amendment does not prohibit the prosecution from commenting on the state of the evidence presented at trial, or on the defense's failure to introduce material evidence or to call witnesses other than the defendant." (People v. Taylor (2010) 48 Cal.4th 574, 633.) "A prosecutor is permitted . . . to comment on a defendant's

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failure to introduce material evidence or call logical witnesses. [Citation.] By directing the jury's attention to the fact defendant never presented evidence that he was somewhere else when the crime was committed, the prosecutor did no more than emphasize defendant's failure to present material evidence. He did not capitalize on the fact defendant failed to testify." (People v. Brown (2003) 31 Cal.4th 518, 554.)

The prosecutor did not commit misconduct during closing argument.

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