Comment of Defendant's Failure to Testify (Griffin)
Category > Comment of Defendant's Failure to Testify (Griffin)
The prosecutor committed Griffin error when commenting on defendant’s failure to testify.The prosecutor committed Griffin error during closing argument by commenting that “defendant clearly does not want to take responsibility for his actions” and “he has put it upon Rosa to testify against him.” The statement can only reasonably be interpreted as a comment on defendant’s silence. However, the error was harmless in light of the overwhelming evidence of defendant’s identity as the perpetrator.id: 24424
The prosecutor committed Griffin error by claiming the defendant was hiding from the jury and failed to explain why he was at the scene. The prosecutor implicated defendant’s failure to testify by arguing that if defendant had good reason to be present at the scene he would have given one, which he did not. The prosecutor compounded the error by telling the jurors that defendant was still hiding “in the wheel well” and was waiting for the jurors to pull him out. This was error under Griffin v. California (1965) 380 U.S. 609, but the error was harmless in light of the overwhelming evidence of guilt. id: 23787
The prosecutor committed misconduct by equating the home invasion robbery to the events of 9/11 but the misconduct did not infect the trial with unfairness. In his closing argument to the jury, the prosecutor equated the terrible events of 9/11 to defendant's home invasion robbery of nine college students in a residence hall. He then displayed a chart listing the flight numbers and airliners downed that day as well as the number of passengers and crew who died. He discussed victims' calls to loved ones and argued it was his duty to "transport" the jurors to the crime scene so they could feel the terror the victims experienced. The prosecutor's argument was clearly misconduct but harmless under the state standard in light of the strength of the evidence of guilt and the fact that the jurors seemed offended by the argument. Moreover, the misconduct did not infect the trial with unfairness such that automatic reversal was required.id: 19512
Prosecutor's comment that defendant was one of two people who could tell about the murder was not prejudicial.The prosecutor's statement that defendant was one of two persons who could tell about the murder approached indirect comment on defendant's failure to testify, but the prosecutor's further observation that defendant in fact told his version of the facts during the police interview substantially lessened any risk the jury might penalize defendant for remaining silent at trial.id: 12475
Asking jury why defendant did not come out and say he did not do it was Griffin error.The prosecutor asked the jury during closing argument . . why doesn't Reilly just come out and say I didn't do it, it was Cliff? The comment was clearly an improper reference to defendant's failure to testify. However, the error was harmless given the overwhelming evidence of guilt.id: 12466
Supreme Court finds prosecutor's comment on defendant's post-Miranda silence was harmless.At petitioner's state murder trial, the prosecutor commented on the fact that, before he was given the <i>Miranda</i> warnings at arraignment, petitioner failed to tell anyone that the shooting was accidental. This was permissible, because the Constitution does not prohibit comment on a defendant's silence after arrest before <i>Miranda</i> warnings are given. <i>Fletcher v. Weir</i>, 455 U.S. 603, 606-07 (1982). However, the prosecutor also commented on petitioner's continued silence after he was given his <i>Miranda</i> rights. This violates <i>Doyle v. Ohio</i>, 426 U.S. 610, 619 (1967). Nevertheless, in a 5-4 decision written by Justice Rehnquist, the Supreme Court held that the error was harmless, because the prosecutor's comments on post-<i>Miranda</i> silence did not substantially influence the jury's verdict. Justices White, Blackmun, O'Connor and Souter dissented.id: 11364
Prosecutor committed Griffin error by arguing defendants' postarrest silence while sitting in the police car was evidence of guilt.The prosecutor committed Griffin error by emphasizing during closing arguments that the defendants sat silently in the police car for 15 minutes following the arrest. He argued innocent people in that situation would have talked to each other, and the silence of the defendants proved they were afraid to talk because the police might be listening. This was an improper comment on the defendants' postarrest silence. The error was prejudicial where the evidence against the defendants was largely circumstantial and the eyewitness testimony was not compelling.id: 17357
Defendant was not prejudiced by the potential Griffin error by the prosecutor's penalty phase cross-examination questions referring to the crimes, which defendant never mentioned on direct examination.Defendant did not testify at the guilt phase. At the penalty phase he testified only about the circumstances of his life prior to the murders. The prosecutor attempted, unsuccessfully, to cross-examine defendant about the details of the murders. Defendant argued that the prosecutor's questions violated the rule set forth in Griffin v. California (1965) 380 U.S. 609. Assuming that the prosecutor's questioning was improper, there was no harm where the questioning was brief, the defense objections were sustained and the prosecutor made no reference to the exchange in closing argument.id: 18255
Updated 2/23/2024The prosecutor did not commit Griffin error by pointing out that the defense presented no evidence in support of the claimed facts described in the defense closing argument.Defense counsel argued during closing argument that defendant was merely a student leaving campus who had to urinate, but there had been no evidence supporting that fact. Counsel added the state did not give defendant a chance to prove he was not guilty. The prosecutor did not thereafter commit error under Griffin v. California (1965) 380 U.S. 609, by commenting during rebuttal that the defense presented no evidence supporting that scenario.id: 26937
The prosecutor did not commit Griffin error by commenting on defendant’s failure to say something on a pretext call.The prosecutor did not commit Griffin error by arguing about something defendant failed to say on a pretext call. Griffin does not extend to comments on the state of the evidence. id: 24344
The prosecutor did not commit Griffin error by comment at the penalty phase that no mitigation witness heard defendant express remorse.During penalty phase closing argument at defendant’s capital trial, the prosecutor commented that none of the mitigation witnesses testified they heard defendant express remorse at any point. This comment referred to statements made to his parents outside of the proceedings, and not to his failure to show remorse by not testifying.id: 25766
Griffin error by the court in asking whether defendant would testify was harmless where it was a brief comment and did not invite any adverse inference.Defense counsel indicated outside the presence of the jurors that defendant would not be testifying. After the defense later indicated that it was about to rest, the court asked “you are resting without calling your client?” Defense counsel objected to the comment as error under Griffin v. California (1965) 380 U.S. 609. While the comment was imprudent, it was harmless since it was brief, did not invite an adverse inference, and the jury was otherwise properly instructed on the defendant’s right to remain silent.id: 25019
There was no Griffin error where a prosecution witness commented on defendant’s failure to testify.The alleged victim testified that defendant knew what he had done to her but remained silent in court. In Griffin v. California (1965) 380 U.S. 609, the court held the prosecution may not comment on the defendant’s failure to testify. However, the Griffin rule does not apply to the comments of a witness.id: 24139
The prosecutor did not commit Griffin error by commenting on the failure of the defense to call logical witnesses.The prosecutor’s comment during closing argument on the defense’s failure to call logical witnesses was not improper Griffin error. If the comment did imply that the defendant failed to testify, it was harmless error.id: 23041
The prosecutor’s penalty phase comments regarding defendant’s lack of remorse did not improperly refer to his failure to testify. The prosecutor did not commit Griffin error by commenting during penalty phase argument about defendant’s lack of remorse following the killing. The evidence might have been presented by defendant’s friends or relatives who believed he was remorseful and did not directly or indirectly refer to his failure to testify.id: 22279
The trial court cured any potential Griffin error by instructing the jurors to ignore the prosecutor’s comment about the failure to call an alibi witness. Defendant argued the prosecutor committed Griffin error by commenting on his failure to call alibi witnesses in his defense. Any error was cured by the court’s admonition to ignore the comment and refrain from discussing it during deliberations.id: 21878
The prosecution did not err by cross-examining defendant about whether he cut off questioning with the police after he testified on direct that he fully cooperated.Defendant argued the prosecutor committed Griffin or Doyle error by cross-examining him about his post-Miranda silence. He testified on direct examination that he was fully cooperative with the police. On cross-examination he admitted there was a time that he told the police he did not wish to discuss the issue further. The cross-examination question was a fair response to defendant’s testimony that he was fully cooperative and any error was harmless in light of the overwhelming evidence of guilt.id: 21386
Any Griffin error in the prosecutor’s comment regarding defendant’s failure to explain the Ponzi scheme was harmless where it was brief, corrected immediately and the evidence was overwhelming. Defendant was charged with multiple counts of securities fraud arising from an alleged Ponzi scheme. The prosecutor likely committed Griffin error by commenting in closing argument about “defendant’s failure to explain any way in which his operation did not constitute a fraudulent scheme.” The prosecutor clarified that he intended to comment on defense counsel’s failure to explain the problem. It is unlikely the improper comment would have been understood by the jury as a remark about defendant’s failure to testify. Assuming it was taken as such, the error was harmless as the reference was brief and mild, and the evidence of guilt was overwhelming.id: 21277
The prosecutor’s comment on the defense failure to call an investigator to testify was not an improper comment on defendant’s failure to testify.The defense cross-examined a witness about statements the witness previously made to an investigator. Some were inconsistent with his trial testimony. But the defense was unable to locate the investigator before trial. The prosecutor later argued the jury could conclude from the fact that the investigator did not testify that the insinuations were false. The trial court was not required to reinstruct the jury that neither side was obligated to call all potential witnesses. Moreover, the prosecutor’s comments did not improperly draw attention to defendant’s failure to testify.id: 21202
The prosecutor committed Griffin error by asking when defendant would stand up and admit he committed the crime.The prosecutor committed Griffin error during argument when he asked when defendant would stand up and take responsibility for his actions. However, the comment was brief and somewhat ambiguous, and the court's direction not to consider the statement was immediate, unequivocal and repeated.id: 20085
Argument that "We'll never know what the killer thought" was not an improper comment on defendant's failure to testify.During closing argument, the prosecutor discussed the evidence regarding intent to kill. He stated: The killer probably thought the victim was dead. We'll never know what he thought. The comment was a permissible reference to the state of the evidence and the fact that intent may be difficult to prove. He did not improperly argue that the evidence of intent to kill was uncontradicted by defendant.id: 12465
Defendant forfeited any claim of Griffin error by failing to object to the argument regarding his failure to testify.Defendant argued the prosecutor improperly commented during closing argument on defendant's failure to testify. However, defendant's failure to object to the prosecutor's comments and to request a curative admonition resulted in a forfeiture of any Griffin error. Moreover, defense counsel's failure to object did not constitute ineffective assistance of counsel since defendant could not establish prejudice where the evidence was strong and the comment brief.id: 19335
The prosecutor's questions and argument regarding defendant's refusal to make a statement were a fair response to his testimony that he was never given a chance to tell his side of the story.Defendant testified that he was never given an opportunity to tell his side of the story. The prosecutor thereafter questioned defendant about his refusal to make a statement when given the chance by police. The prosecutor's questioning and later argument to the jury was not an improper comment on defendant's invocation of his right to remain silent. Rather, it was a fair response to defendant's claim that he was never given a chance to tell his side of the story. Moreover, the court's instruction that defendant's exercise of his right could not be used to infer guilt could have included an admonition that the exercise of his right could not be used to draw an inference as to his credibility, but the instruction given was adequate. Even if there was an error it was harmless in light of the overwhelming evidence of guilt.id: 18863
The prosecutor did not commit misconduct by referring in questioning and argument to defendant's failure to request a live lineup.Defendant argued that the prosecutor's questioning and argument about his failure to request a live lineup was akin to Doyle v. Ohio error which prohibits the prosecutor from exploiting a defendant's post-Miranda-advisement silence. The comments were made after the defense made the photo lineups the focus of the defense case. However, because lineups do not implicate the right to remain silent, Griffin and Doyle do not prohibit comment on refusal to participate in a lineup or failure to request one.id: 17806
Prosecutor did not commit Griffin error by objecting to hearsay evidence and stating the declarant (defendant) was not unavailable.Defendant sought to elicit testimony from a witness that defendant intended to return to Santa Fe even before the killing. The prosecutor objected on hearsay grounds and later stated "the declarant is not unavailable, your honor." There was no <i>Griffin</i> error. The comment was in the form of a legal objection, not a remark to the jury. It was not likely that jurors construed the objection as a comment on defendant's failure to testify.id: 15921
Prosecutor did not commit prejudicial Doyle error in commenting on defendant's failure to tell family and friends about a possible suspect.The prosecutor may have committed <i>Doyle</i> error (<i>Doyle v. Ohio</i> (1976) 42 U.S. 610) in commenting on defendant's failure to mention Dennis Morgan as a suspect to his family and friends. However, any error was not prejudicial. The jury was unlikely to have focused on defendant's silence about Morgan after defendant's arrest and receipt of <i>Miranda</i> warnings. Moreover, the evidence which impeached defendant's trial testimony was not this silence, but rather the several versions of the cause of the victim's injuries he gave family and friends when the young victim lost consciousness and was taken to the hospitalid: 15922
Trial court did not err in precluding defense counsel from commenting on a codefendant's decision not to testify.The trial court denied defendant's motion to sever her trial from that of the other codefendants. Defendant later argued the refusal to permit her to refer in closing argument to a codefendant's decision not to testify benefitted the codefendant at her expense and denied her due process. However, the defendant would not have benefitted by counsel's comment on codefendant's failure to testify. Moreover, the prospect of a severance whenever a defendant elects to offer such a comment would provide an unacceptable mechanism for defeating the statutory preference for joint trials.id: 15821
Prosecutor's comment on lack of mitigating evidence at penalty phase was not an impermissible comment on defendant's failure to testify.During penalty phase closing argument the prosecutor commented on the lack of any mitigating evidence presented by the defense. Contrary to the defendant's claim on appeal, the prosecutor's argument was not an impermissible comment on defendant's failure to testify.id: 15009
Comment by codefendant's attorney regarding defendant's silence was harmless where codefendant emphasized that his credibility was strong because he testified.In a joint trial of multiple codefendants, comment by an attorney representing one defendant on the silence of a codefendant violates the codefendant's constitutional right to freedom from adverse comment on his silence at trial. However, the error may be harmless if made by codefendant's attorney where as here, the codefendant sought to emphasize that his credibility was strong because he took the stand and submitted to cross-examination.id: 12467
Comment on defendant's failure to explain why he was in front of the bar on the night of the murder was not Griffin error.During closing argument the prosecutor stated that defendant did not even try to explain why he was at the bar patronized by the victim on the night of the murder. The rule prohibiting comments on defendant's failure to take the stand in his own defense does not extend to comments on the failure of the defense to introduce material evidence or call logical witnesses.id: 12468
Comments regarding failure of the defense to call any witnesses was not an improper reference regarding defendant's failure to testify.During closing argument, the prosecutor commented: But don't you think it's interesting that not one witness was called by the two defendants. This comment did not refer to defendant's failure to testify, but to the failure of the defense to call witnesses to contradict the testimony of the prosecution's witnesses or to offer any evidence in opposition to the prosecution's case.id: 12469
Prosecutor did not commit prejudicial error in stating that a guilty person may have reasons not to testify just as an innocent person might where he admonished the jurors not to consider the reasons.Recalling defense counsel's remark as to why an innocent person might not testify, the prosecutor observed that there might be reasons why a guilty man doesn't want to take the stand and testify. In light of the prosecutor's subsequent admonition not to consider why a defendant would choose not to testify, the remark in question did not amount to a request that the jury consider defendant's silence as evidence of guilt.id: 12470
Prosecutor did not commit Griffin error in arguing that there were no witnesses to testify as to defendant's whereabouts on the night of the murder.Defendant argued the prosecutor committed <i>Griffin</i> error <i>(Griffin v. California</i> (1965) 38 U.S 609) by arguing: "you had a lot of defense witnesses in here and not one of them can tell you where Joseph Echevarria was that night." The argument was not a direct or indirect comment on defendant's failure to testify but rather was a comment on the failure of the defense to produce an alibi witness for the crucial period.id: 12471
Prosecutor did not err in arguing that defendant was in a position to produce evidence regarding her venereal disease but did not do so.During closing argument the prosecutor stated: do we have any other evidence that Debbie Reil ever had venereal disease? Defendant's attorney is in a unique position to obtain that evidence for you, if it exists . . . The prosecutor was not commenting on defendant's failure to testify, but merely pointing out that defendant could have easily produced medical testimony to establish the fact, if it were true. It is not improper to comment on defendant's failure to produce a material witness.id: 12472
Prosecutor did not err in arguing the jury could not judge the defendant's demeanor from the tape recordings.Prosecutor argued that since the jury only heard defendant through his tape recorder, they were not able to judge his demeanor. The prosecutor was entitled to comment on the lack of remorse in defendant's prior statements and testimony in whatever form they were brought before the penalty jury.id: 12473
Prosecutor's comment on defendant's lack of remorse was not an improper comment on defendant's failure to testify at trial.In commenting on the defendant's lack of remorse following the killings he stated defendant's last words were Now I'm going to get Byron, too. There wasn't any remorse. The statement was not a comment on defendant's failure to testify. It was simply a fair comment on the state of the evidence.id: 12474
Prosecutor's comments in response to defense counsel's argument regarding defendant's failure to testify were harmless where they were brief and did not invite the jury to draw a negative inference.Defense counsel read CALJIC Nos. 2.60 and 2.61 regarding defendant's failure to testify and asserted defendant came to court and simply told the prosecution to prove its case. When they did not prove the case defendant decided not to present evidence. The prosecutor responded by saying defense counsel attempted to have the jury speculate defendant's only reason for not testifying was insufficient evidence. Defendant objected to the statements regarding speculation as to why he did not testify. The remarks did not invite the jury to draw an inference from defendant's failure to testify. Even if the comment was improper the error was harmless where it was brief and contained no suggestion that an inference of guilt should be drawn by defendant's failure to testify.id: 12476
Prosecutor's question during closing argument as to the lack of defense counsel's rational explanation as to why defendant was seen with a gun was not Griffin error.During rebuttal closing argument the prosecutor observed the People had provided a rational explanation as to why defendant was seen with the handgun. He then stated Where was Mr. Lewis' (defense counsel) rational explanation. The remarks contained no references express or implied, to defendant's failure to testify and therefore were not improper.id: 12477
Remark on defendant's lack of remorse was not an improper comment on his failure to testify.During penalty phase closing arguments the prosecutor commented on defendant's lack of remorse. Stating that remorse a nonstatutory factor in mitigation was absent, did not amount to a comment on defendant's failure to testify or failure to confess.id: 12478
There was no Griffin error in the prosecutor's argument where defendant and the codefendants highlighted defendant's failure to testify.Defendant was convicted along with two others of robbery. A codefendant testified that defendant told him the victim owed defendant money. During closing argument the prosecutor referred to the debt collection defense. After an objection by defense counsel, the prosecutor argued, We have no evidence with regards to any state of mind of any other defendant. This was not an improper comment on defendant's failure to testify. Defendant's failure to testify was spotlighted by the codefendants who fingered defendant as the sole robber. Moreover, defendant's attorney focused on his client's failure to testify, We put on no witnesses, no testimony but relied upon the state of the evidence. Next, the jury was instructed to draw no inference from the failure to testify. Finally, the prosecutor made no suggestion an inference of guilt should be drawn from defendant's failure to testify.id: 12480
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245