The United States Constitution grants criminal defendants the right not to testify in their trial. See U.S. Const., Amend. V. From this right, the Florida Supreme Court has ruled that commenting in such a way that can be interpreted to cast light on the defendant’s failure to testify is an error and strongly discouraged. In a recent case, the Third District Court of Appeals heard a defendant’s appeal on this issue. The defendant was appealing from a Florida manslaughter conviction in which he was sentenced to 30 years in state prison, followed by 10 years’ probation.
The defendant argued on appeal that the State made an improper comment during its closing argument regarding the defendant’s decision not to testify at trial. Specifically, the prosecution said that he did not testify because he engaged in potentially incriminating conduct. However, the court took a more expansive view of the statements made, based on the trial transcript. The key distinction that the prosecution made was not to point out why the defendant was not testifying but instead to argue why the defendant was on trial.
The defendant’s counsel, during her closing argument, argued that the State was improperly relying upon innocent conduct to prove its case, such as the fact that he cut his dreadlocks. The defendant’s position at trial was that since this conduct was not illegal, it should not be used as evidence of guilt. The appeals court, therefore, read the prosecution’s closing argument as responding to the defense’s argument.