I had a post a couple weeks back about prosecutors’ comments in closing argument about the defendant’s failure to testify, and noted that Ohio law is pretty liberal on that score:  statements that the state’s case is “unrefuted” or “uncontradicted” are routinely allowed.  Along that line is the 6th District’s decision last week in State v. Silvey, which rejected the defendant’s contention that the prosecutor had crossed the line by summarizing the victim’s testimony in summation and then telling the jury,

“And not one person has taken this stand and said that did not happen. Not one.  Look at the facts in the case, look at the testimony you’ve heard, and more importantly, look at the testimony that you didn’t hear. No one took the stand and said this isn’t true.”

The problem with Silvey is that the case involved a molestation of a 12-year-old girl.  Needless to say, there were no witnesses to the incidents:  the only one who could have contradicted the victim’s testimony was the defendant himself, because he was the only other one who was there.

It’s one thing to argue that a comment that the state’s evidence is “uncontradicted” doesn’t directly reference the defendant’s failure to take the stand; frankly, I think it does, and so do courts from a lot of other jurisdictions, but I can at least see the logic in the contention.  In the normal case, it is perhaps appropriate to note that there are no eyewitnesses which support the defendant’s proposition, no alibi witnesses to establish he was elsewhere, no forensic witnesses to testify that it wasn’t his fingerprints or his bullet or his DNA. 

But it’s hard to see how it’s not a reference when the only possible contradiction could come from the defendant himself, especially when that’s bolstered by the prosecutor telling the jury to “look at the testimony you didn’t hear.”  And courts should be able, and willing, to make distinctions between cases like this and “normal” cases. 

That’s why I don’t get too exercised about cases like the one I talked about yesterday, State v. Jackson, where the court reversed a conviction for prosecutorial misconduct on exceedingly shaky grounds.  There are a lot more cases like Silvey than Jackson.