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

  • September 12, 2017
    What's Up in the 8th
    Prior consistent statements, whether State v. Hand is applied retroactively, and a big Coming Attraction
  • September 11, 2017
    Case Update
    Looking back at Melendez-Diaz, and the 8th goes 0 for 2 in the Supreme Court
  • September 8, 2017
    Friday Roundup
    Pro bono work, screwed-up appeals, and is Subway shorting their customers?
  • September 5, 2017
    What's Up in the 8th
    The barriers to expungement, jury verdict forms, and hybrid representation
  • August 31, 2017
    Constructive possession
    Constructive possession is 9/10ths of the law
  • August 29, 2017
    What's Up in the 8th
    A traffic stop found Samson Primm in possession of a few grams of marijuana, but he hires a lawyer and files a motion to suppress the stop. On the day of trial, the City asks to dismiss the case. Primm...
  • August 28, 2017
    Truth in plea bargaining
    So I got a brochure last week from Judge Donnelly over at the Common Pleas court. As you can see, it's a panel discussion on plea bargaining. The judge asked me to get out the word, so I just sort...
  • August 15, 2017
    Summer Break
    Got a bunch of stuff to do over the next couple weeks, and with the slowdown in the courts, it's a good time to take a break. I'll be back here on August 28. See you then....
  • August 11, 2017
    Friday Musings
    Drug trafficking, ADA lawsuit abuse, and e-filing
  • August 10, 2017
    Case Update
    Waiting on SCOTUS; two Ohio Supreme Court decisions