Prohibition against prosecutor commenting on defendant’s failure to testify applies with equal force to pro se co-defendant
FIFTH AMENDMENT United States v. Templeman, No. 06-1129, ___ F.3d ___ (10th Cir. Apr. 4, 2007)(Colorado). Appeal of district court’s denial of motion for mistrial in trial for retaliation against witness in violation of 18 U.S.C. §§ 1513(b)(1) & 2 and conspiracy in violation of 18 U.S.C. § 371. HELD: Prohibition against prosecutor commenting on defendant’s failure to testify applies with equal force to pro se co-defendant. Nevertheless, circumstances surrounding pro-se co-defendant’s attempt to call defendant to testify do not indicate that co-defendant intended to comment to jury on defendant’s silence or create an inference of defendant’s guilt from his silence. Furthermore, district court’s instruction to jury, directing them not to consider or discuss defendant’s silence cured any prejudice that might have resulted from co-defendant’s conduct. Therefore, district court did not abuse discretion in denying defendant’s motion for mistrial. Read the opinion here. |
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