Closing Argument - Improper Comment on Defendant's Failure to Testify

Ford v. Wilson, 747 F.3d 944 (7th Cir. 2014)

Doyle v. Ohio, 426 U.S. 610 (1976) prohibits impeaching a defendant with the defendant’s post-Miranda silence (i.e., “You didn’ tell this story after you were arrested, did you?”). In Griffin v. California, 380 U.S. 609 (1965), the Supreme Court held that a prosecutor may not comment during closing argument about the defendant’s failure to testify at trial. Both of these decisions address the improper suggestion that invoking the Fifth Amendment can be costly to the defendant. Griffin, however, is subject to exceptions if the defense attorney’s closing argument raises the issue and the prosecutor is simply responding. United States v. Robinson, 485 U.S. 25 (1988). In this case, the defendant was charged with murder. The defense attorney argued in his closing that the prosecutor failed to prove any motive why the defendant would kill the victim. In response, in his closing, the prosecutor argued that there were only two people were there who could explain what happened and one of them was dead. “The next possible source is the person who committed the offense. If that person who committed the offense don’t talk, how would we ever know?” In this habeas, case, the Seventh Circuit ultimately held that habeas relief was not required for procedural reasons.

Gongora v. Thaler, 710 F.3d 267 (5th Cir. 2013)

Repeatedly during his closing argument, the prosecutor rhetorically asked, “Who do you expect to hear from?” This rhetorical question was posed in connection with the various people in a car from which shots were fired. The defendant was one of the occupants. The prosecutor said, “You’re not going to hear from the shooter, of course.” And he then tried to correct this improper comment, by saying, “of course the defendant has no duty to testify.” He then continued to rhetorically ask, “Who do you expect to hear from?” Though the state trial judge repeatedly sustained objections and also instructed the jury to disregard the improper comments, the Fifth Circuit held that this was a violation of the defendant’s Fifth Amendment rights and necessitated granting a writ of habeas corpus.

Girts v. Yanai, 501 F.3d 743 (6th Cir. 2007)

During closing argument, the prosecutor repeatedly made reference to the “only person” who could answer certain questions. This amounted to an improper comment on the defendant’s failure to testify. Trial counsel’s failure to object and preserve the error for appellate review was ineffective assistance of counsel.

Ben-Yisrayl v. Davis, 431 F.3d 1043 (7th Cir. 2005)

The prosecutor made improper comments during closing argument that focused on the defendant’s failure to offer an explanation at trial why he had confessed to the murder if he had not, in fact, committed the murder: “Let the defendant tell you why somebody would freely and voluntarily confess . . .” See Griffin v. California, 380 U.S. 609 (1965).

DePew v. Anderson, 311 F.3d 742 (6th Cir. 2002)

The prosecutor’s improper comment on the defendant’s failure to testify, along with numerous other improper comments deprived the defendant of a fair death penalty sentencing proceeding. The Sixth Circuit granted the writ, noting that the state court’s statement that despite the errors, the brutality of the murder supported the community’s expectation of the death penalty, was not the proper way to evaluate constitutional violations.

United States v. Johnston, 127 F.3d 380 (5th Cir. 1997)

The prosecutor erred in arguing to the jury that they should not go back to the jury room and "make up a story" for the defendants. He continued, "You can't play 'what if.' You can't say, 'Well, if they testified, well, maybe they would have explained this. Maybe they would have said that.'" This amounted to an improper comment on the defendants' failure to testify.

United States v. Roberts, 119 F.3d 1006 (1st Cir. 1997)

The prosecutor stated in closing argument that when the defense decides to present a defense, it has the same responsibility as the government, that is, to present a compelling case. This remark was made immediately after advising the jury that the defendant has no burden to testify and the fact that he did not testify should not be considered by the jury. This argument required setting aside the conviction.

United States v. Hardy, 37 F.3d 753 (1st Cir. 1994)

The prosecutor argued that the two defendants were still “running and hiding,” just as they had the night of the arrest. Because the defendants were in court, they clearly were not hiding. Therefore, this argument could only have been interpreted to mean that the defendants were hiding behind their right not to testify. This was an improper comment on the defendants’ right not to testify and the conviction was reversed.

Floyd v. Meachum, 907 F.2d 347 (2d Cir. 1990)

The Second Circuit holds that the cumulative effect of the prosecutor’s improper arguments denied the defendant a fair trial requiring granting a writ of habeas corpus. Among the prosecutor’s improper statements was the statement that the Fifth Amendment guarantee that a conviction must rely upon proof beyond a reasonable doubt is a shield for the innocent, not a shield for the guilty. The prosecutor also repeatedly referred to her position as a prosecutor, “seeking justice.” Furthermore, the prosecutor’s repeated references to the Fifth Amendment constituted an improper comment on the defendant’s refusal to testify.

United States v. Sardelli, 813 F.2d 654 (5th Cir. 1987)

A prosecutor commented during closing argument about the total absence of defense evidence. There is only one person who could possibly have had any knowledge, the defendant. This constituted an impermissible comment on the defendant’s failure to testify.

Lent v. Wells, 861 F.2d 972 (6th Cir. 1988)

Repeated references to the uncontradicted nature of the evidence violated the defendant’s right to remain silent. Actually, much of the evidence was rebutted, the only missing link was the defendant’s testimony. Thus, the conviction must be reversed.

United States v. Cotnam, 88 F.3d 487 (7th Cir. 1996)

A prosecutor’s comment that the government’s case was “uncontradicted,” “undenied,” “unrebutted,” “undisputed,” “uncontroverted,” etc., amount to a violation of the defendant’s Fifth Amendment rights if the only person who could have contradicted, denied, rebutted or disputed the government’s evidence was the defendant himself. In this case, the remarks satisfied this standard and the defendant’s conviction was reversed.

United States v. Sehnal, 930 F.2d 1420 (9th Cir. 1991)

The prosecutor asked rhetorical questions during closing argument which clearly emphasized the defendant’s failure to testify. Specifically, the prosecutor urged the jury to address questions to defense counsel, repeatedly asking him to explain this, or that, during the defendant’s closing argument: “Ask him why it took him so long to produce his bank records . . . Ask him why he set up separate accounts” etc. This was error; but the defendant did not object and the error did not amount to plain error.

United States v. Schuler, 813 F.2d 978 (9th Cir. 1987)

During closing argument, the prosecutor referred to the defendant’s laughing during the trial. The defendant did not testify in this case and these remarks by the prosecutor constituted reversible error: It was an attempt to put the defendant’s character in issue and also represented a comment on his failure to testify. Finally, references to the defendant’s demeanor while at counsel table represented the introduction of evidence during the closing argument which was not admitted at trial.

Lincoln v. Sunn, 807 F.2d 805 (9th Cir. 1987)

During the closing argument, the prosecutor repeatedly referred to the defendant as the only person who could explain the incriminating evidence, and the evidence went unexplained. The case was sent back to the lower court to determine whether the error was sufficient to warrant setting aside the conviction.