Welcome to The Briefcase

Commentary and analysis of Ohio criminal law and whatever else comes to mind, served with a dash of snark.  Continue Reading »

×

Prosecutor comments on self-incrimination

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.

Search

Recent Entries

  • July 21, 2017
    Friday Roundup
    Computers and sex offenders, civil forfeiture, and phrases that should be put out to pasture
  • July 20, 2017
    Case Update
    A look at the Ohio Supreme Court's decision in State v. Oles, and did you know that Justice Ginsburg has a .311 batting average with runners in scoring position? Oh, wait...
  • July 18, 2017
    What's Up in the 8th
    Judicial bias, RVO specs, 26(B) stuff, waivers of counsel... And more!
  • July 17, 2017
    No more Anders Briefs?
    I have a case now in the 8th District where I came close to filing an Anders brief the other week. It's an appeal from a plea and sentence. The plea hearing was flawless. The judge imposed consecutive sentences, and...
  • July 13, 2017
    Sex offenders and the First Amendment
    Analysis of the Supreme Court's decision in Packingham v. North Carolina
  • July 12, 2017
    Removing a retained attorney
    What does a judge do if he thinks a retained attorney in a criminal case isn't competent?
  • July 11, 2017
    What's Up in the 8th
    The court does good work on a juvenile bindover case, and the State finally figures out that it should have indicted someone in the first place
  • July 10, 2017
    Case Update
    SCOTUS ends its term; the Ohio Supreme Court issues another opinion, and likely the last one, on the trial tax
  • June 28, 2017
    Plea Bargaining -- The defendant's view
    A look at the Supreme Court's decision last week in Lee v. United States
  • June 27, 2017
    What's Up in the 8th
    A worrisome decision on expert funding, and, mirabile dictu, a court's dismissal of a case for a discovery violation is upheld