What if the prosecutor tells jurors my silence shows I am guilty?

If the prosecutor asks jurors to treat your decision not to testify at trial as evidence that you are guilty, that raises a serious constitutional issue. The rule concerns the choice not to take the witness stand during the trial; it is different from silence during a police interview. The precise words and context matter, and an improper remark does not automatically mean a mistrial or reversal.

What the rule covers

The Fifth Amendment bars the prosecutor or judge from inviting the jury to infer guilt from an accused person’s failure to testify at a state criminal trial (Griffin v. California (1965) 380 U.S. 609, opinion). A prosecutor may argue reasonable inferences from evidence admitted at trial, but may not focus the jury on the defendant’s personal decision not to testify and use that silence to suggest guilt.

Context matters. A comment that evidence was uncontradicted is not automatically a forbidden comment on the defendant’s silence; the question is what the prosecutor’s words and argument actually focused on and what evidence or other witnesses could address the point. In People v. Avena (1996) 13 Cal.4th 394, the court treated the particular penalty-phase argument as concerning missing mitigation evidence, not as a comment on the defendant’s decision not to testify. That outcome should not be generalized to a different trial record (opinion).

What to preserve during trial

Tell trial counsel promptly and identify the exact words, where they appear in the closing argument, what evidence the prosecutor was discussing, and whether anyone other than the defendant could have contradicted that evidence. Preserve the closing transcript or recording, the objection and ruling, any request for an admonition, and the jury instructions given or refused. These details help counsel explain whether the argument actually invited the prohibited inference.

California’s current no-adverse-inference instruction, CALCRIM No. 355, tells jurors not to consider or discuss the defendant’s failure to testify. The Judicial Council’s current bench notes say the instruction should be given on request; it is not an automatic instruction in every case. Whether to request it can depend on the case and the defendant’s preference (CALCRIM No. 355). Counsel may also ask the judge for an appropriate admonition or other response. The result depends on the argument, objections, instructions, and full trial record.

If the trial has ended

A later new-trial motion is a separate question. Penal Code section 1181(5) lists prejudicial prosecutorial misconduct before the jury as a possible ground for a new trial, but a disputed phrase does not by itself establish prejudice or guarantee relief (Penal Code section 1181(5)). Whether the issue was preserved and whether any error affected the result require review of the record.

The Law Offices of David S. Chesley can review the closing argument, objections, and instructions with you. Call (800) 755-5174, or see the firm’s criminal trial overview.