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When a prosecutor comments on a defendant’s decision not to testify

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Photo from website of U.S. District Court (W.D. Mi.).

Prosecutors ordinarily are prohibited from mentioning to the jury that a defendant did not take the witness stand or remained silent prior to the trial date. 

Underlining the importance for criminal defendants to argue both under the applicable state and federal constitutions, today Maryland’s highest court applied Maryland Declaration of Rights art. 22 in overturning a conviction based on the prosecutor’s reference to the defendant’s not having taken the witness stand. Marshall v. Maryland, ___ Md. ___ (July 27, 2010).

Marshall further exclaims: 

“[W]e have previously interpreted Maryland’s privilege against self-incrimination to be more comprehensive than that of the federal government…

“Moreover, our cases have long held that a criminal defendant’s rights under Article 22 of the Maryland Declaration of Rights and § 9-107 of the Courts and Judicial Proceedings Article preclude comment by a prosecutor on a defendant’s decision not to testify. In fact, as pointed out by Judge Raker for the Court in Smith v. State, 367 Md. 348, 353, 787 A.2d 152, 155 (2001),

“‘[c]omment upon a defendant’s failure to testify in a criminal trial was prohibited in Maryland before the United States Supreme Court, in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L. Ed. 2d 106 (1965), held that the federal constitutional right against compelled self-incrimination prohibits prosecutorial comment on the accused’s silence or failure to testify’…

“A closely divided Supreme Court in United States v. Robinson, 485 U.S. 25, 108 S.Ct. 864, 99 L.Ed.2d 23 (1988), held, in a federal criminal prosecution, that the prosecuting attorney in argument to the jury could comment on the defendant’s decision not to testify because the comment was a ‘fair response’ to defense counsel’s ‘closing argument that the Government had not allowed respondent to explain his side of the story.’ Robinson, 485 U.S. at 26, 108 S.Ct. at 866, 99 L.Ed.2d at 27. The Supreme Court held ‘that the comment by the prosecutor did not violate respondent’s privilege to be free from compulsory self-incrimination guaranteed by the Fifth Amendment to the United States Constitution.” (Ibid.). Consequently, under Robinson, a defendant’s Fifth Amendment right to be free of prosecutorial comment upon the defendant’s decision not to testify can be lost because of defense counsel’s closing argument…

“Assuming, arguendo, that the invited response doctrine may be applicable under Maryland law to a prosecutor’s comments about the defendant’s decision not to testify, the doctrine would not justify the prosecuting attorney’s comments in the case at bar.”