CALIFORNIA EVIDENCE: CIVIL AND CRIMINAL
...Privileges
......Self-Incrimination Privilege
.........Comment on Exercise of Privilege
............In General
 24 Cards On This Topic:
  • DA's use of, or comment on, silence or invocation.
  • No comment may be made re exercise of privilege; instruction may be requested that jury to draw no inference from exercise.
  • DA's argument that D's silence at O's question suggested he was guilty was not a 5th Amend. violation as D was required to assert the privilege in order to benefit from it.
  • D’s answer to DA, that he knew some Ws came to court and took the Fifth, was nonresponsive and neither elicited nor anticipated by the DA—trial court did not err in refusing mistrial.
  • DA's statement that the evidence was uncontradicted reflected his view that the exculpatory evidence was not true; it was not a comment upon D's failure to testify.
  • Where DA's statements could only have been understood by the jury as a comment on D’s silence, they constituted Griffin error; error harmless given overwhelming evidence of D's guilt.
  • DA's comment that D was "hiding" from the jury, implying that he was hiding because he refused to get on the stand and testify, was Griffin error.
  • Given the curative instruction, CALCRIM No. 355 and DA's evidence, any misconduct in DA's referring to D's not calling witnesses to testify, if Griffin error, was harmless.
  • By drawing jury's attention to fact D never explained his calls to co-D or mentioned facts of the case to friend whose recorded calls were testified to by an investigator, DA violated precepts of Doyle; error harmless as no influence on jury.
  • DA's comments, rather than being a direct or indirect reference to D's silence, constituted reasonable comment on D's failure to introduce material evidence or logical witnesses.
  • As D's invoking Miranda was cumulative of and inferior to other evidence that he made up the story he gave to police and used at trial, and because DA never again mentioned invocation, two fleeting references to invocation not Doyle error.
  • DA's oblique reference to the lack of access to testimony from Ds at first trial, if Griffin error, was harmless beyond a reasonable doubt.
  • Although issue waived, no Griffin error where DA commented on defense counsel's failure to provide explanations and focused on counsel's argument and evidence, not on D's silence.
  • No error in DA comment on D's asking for counsel [after being told of rape kit and before washing hands while officer out of room], where defense counsel opened door and did not object.
  • No Doyle error in DA's comments on D's failure to tell friends and family, before being advised of right to remain silent, of presence of friend at crime scene.
  • Reversible error for DA to use D's statement to impeach him on cross-exam where DA agreed not to use statement before D made it.
  • DA's references to lack of challenge to aggravating evidence of D's violent behavior was not Griffin error; it was comment on evidence not D's failure to take stand.
  • DA did not commit Griffin error; proper standard of review for prosecutorial statements discussed.
  • DA's reference to D's refusal to speak with police was a fair response to D's claim that he was not given the opportunity to tell his side of the story.
  • As lineups do not implicate the right to remain silent, Griffin and Doyle do not prohibit comment on D’s refusal to participate in a lineup or failure to request one; Griffin-Doyle objection correctly overruled.
  • DA’s questions, arguments about D’s ability to request live lineup referred to his failure to develop exculpatory evidence and were not aimed at the exercise of his right to remain silent.
  • D not prejudiced by claimed Griffin error where court sustained objection and admonished jury; claim of error not preserved as to other comments by that one objection.
  • DA repeated and flagrant denigration of D's right to remain silent not harmless beyond reasonable doubt—"This is Griffin error plain and simple."
  • DA's Griffin error harmless where brief and indirect, no suggestion of inference of guilt and court undid remarks by admonition.


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