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Criminal Procedure • 5th Amendment
CRIMPRO#058
Legal Definition
A prosecutor cannot make a negative comment about a defendant's failure to testify, or a defendant's choice to remain silent after Miranda. However, a prosecutor may comment in response to a defense counsel's assertion that the defendant was not permitted to explain his side of the story. If the prosecutor impermissibly comments, the court will use the harmless error test on appeal.
Plain English Explanation
In a criminal trial, the government has the burden to convince a judge or jury that the defendant has committed crimes beyond a reasonable doubt. Though the government often tries to get the defendant to help them in their efforts (by trying to get a confession, or any type of statement that can be used to cast doubt on the defendant's trustworthiness), the government isn't allowed to infer a defendant is guilty simply because they are exercising their right to remain silent or not testify against themselves. In fact, the only time a prosecutor is allowed to comment on a defendant's silence is if the defendant's attorney tries to mischaracterize their silence as oppression. In other words, if a defense attorney says something like, "My poor client hasn't even had a chance to tell their side of the story!" but, in reality, the defendant has chosen to stay silent, the prosecutor can clarify with something like, "We have given the defendant the opportunity to speak, but they have, instead, chosen to not share their side of the story."
Related Concepts
In assessing double jeopardy, when do two crimes constitute the same offense?
Under what circumstances may a defendant be retried?
When and how may a defendant assert their 5th Amendment Right Against Compelled Testimony?
When does jeopardy attach, and what prevents double jeopardy?
When may the 5th Amendment right against compelled testimony be eliminated?
