☰ Revisor of Missouri


Chapter 546

< > Effective - 28 Aug 1939    bottom

  546.270.  Failure to testify not to prejudice defendant. — If the accused shall not avail himself or herself of his or her right to testify, or of the testimony of the wife or husband, on the trial in the case, it shall not be construed to affect the innocence or guilt of the accused, nor shall the same raise any presumption of guilt, nor be referred to by any attorney in the case, nor be considered by the court or jury before whom the trial takes place.


(RSMo 1939 § 4082)

Prior revisions: 1929 § 3693; 1919 § 4037; 1909 § 5243

(1951) Argument by prosecuting attorney that "defendant has not even testified" constitutes reversible error and when such statement is not competent for any purpose a general objection is sufficient. State v. Dupepe (Mo.), 241 S.W.2d 4.

(1952) Statement in argument on questions as to first and second degree murder, inquiring "What evidence do you have on the condition of his mind?" and stating "Even if you believe" witness "who, I tell you, was a perjurer" ✴ ✴ ✴ and further statement that defendant shot deceased and inquiry "Did they make any defense of it?" held not improper comments on evidence. State v. Johnson, 362 Mo. 833, 245 S.W.2d 43.

(1954) Statement by prosecuting attorney that defense "offered no evidence at all" was not comment on failure of accused to testify in violation of this section. State v. Hayzlett (Mo.), 265 S.W.2d 321.

(1955) Where defendant's wife failed to testify prosecutor's query in argument, "Who can identify where he was that morning other than his wife and two kids?" held error as comment on failure of wife to testify. State v. Wyatt (Mo.), 276 S.W.2d 86.

(1955) Statement that there was no evidence on defendant's side and that state's evidence was uncontradicted held not comment on failure of defendant to testify. State v. Hardy (Mo.), 276 S.W.2d 90.

(1955) Prosecutor's statement that there was "no evidence here to refute what any of these people said" held not comment on failure of accused to testify. State v. Murray (Mo.), 280 S.W.2d 809.

(1955) Where prosecutor in objecting to statement of defense counsel that state witnesses had testified defendant told them he was just walking by burglarized premises, stated in effect that defendant had not testified in case, a mistrial should have been declared. State v. Lindner (Mo.), 282 S.W.2d 547.

(1957) Statement that "on one side is the state's evidence, not contradicted. And what is on the defense side? It is empty." held not comment on accused's failure to testify. State v. Hite (Mo.), 298 S.W.2d 411.

(1957) Where defendant takes stand, his failure to testify on specific facts in the case is a legitimate subject for comment by the state in argument. State v. Stidham (Mo.), 305 S.W.2d 7.

(1959) Statement in instruction on alibi defense that defendant "says he was not present at the time and place" etc. held not comment on defendant's failure to testify. State v. Heissler (Mo.), 324 S.W.2d 714.

(1962) Comment by state counsel that ". . . the State's evidence is unrefuted, it is undisputed, and it is undenied", held not be to comment on defendant's failure to testify. State v. Powell (Mo.), 357 S.W.2d 914.

1962) Statement by prosecuting attorney in closing argument that "when the state had concluded its evidence in this case the defense was free to offer any evidence it chose and none was forthcoming" was permissible comment where defendant offered no evidence. State v. Michael (Mo.), 361 S.W.2d 664.

(1964) Arguments by prosecuting attorney that the only evidence in the case was the evidence the state produced and that if jurors were accused of murder and were innocent and could prove it they would probably do so were not proper comments of failure of defendant to testify. State v. Perkins (Mo.), 382 S.W.2d 701.

(1964) Court did not err in refusing to give instruction requested by defendant to the effect that jury could not consider failure of the accused to take the stand nor draw any unfavorable inference therefrom. State v. Perkins (Mo.), 382 S.W.2d 701.

(1965) Prosecutors and judges may not comment adversely on the failure of a defendant to testify in a state criminal trial.  Griffin v. State of California, 380 U.S. 609, 85 S.Ct. 1229, 14 L. Ed.2d 106.

(1966) Griffin v. State of California rule prohibiting prosecutors and judges from commenting adversely on failure of defendant to testify in state criminal trial does not apply retroactively.  Teban v. United States ex rel. Shott, 382 U.S. 406, 86 S.Ct. 459, 15 L.Ed.2d 453.

(1966) Statement by prosecutor that property was found in home of defendant, and that there has been no explanation as to how it got there does not constitute reference to defendant's failure to testify. State v. Kennedy (Mo.), 396 S.W.2d 595.

(1966) It is not error to refuse to give instruction relating to defendant's failure to testify in case, even when the instruction is requested by defendant. State v. Barker (Mo.), 399 S.W.2d 1.

(1966) Statement by prosecutor that "malice can be inferred from the facts; he intentionally shot him, and he has voiced here on different occasions that he shot him. One: 'I shot him down like a dirty dog.' It wasn't controverted. The defendant didn't deny it; there was no evidence" was not a reference to failure of defendant to testify. State v. Gregg (Mo.), 399 S.W.2d 7.

(1966) Statement by prosecuting attorney that "and at the close of the State's case the defendant had an opportunity to present any evidence that they wanted to show, and none was forthcoming" was not reference to accused's failure to testify.  State v. Hodge (Mo.), 399 S.W.2d 65.

(1966) Statement by prosecutor that evidence on behalf of state was uncontradicted was not comment on defendant's failure to present evidence. State v. Caffey (Mo.), 404 S.W.2d 171.

(1969) Statement by prosecutor that the state's evidence was uncontradicted did not constitute a comment on the failure of defendant to take the witness stand. State v. Robb (Mo.), 439 S.W.2d 510.

(1972) Instruction to jury over defendant's objection, that defendant's failure to testify should not give rise to a presumption of guilt or inference of any nature was not error. State v. Smart (Mo.), 485 S.W.2d 90.

(1972) Prohibition against comment on defendant's failure to testify does not prohibit general comment on failure of accused to offer evidence. State v. Schrest (Mo.), 485 S.W.2d 96.

(1973) Held that when the trial court judge said to defendant "Will you be sworn, sir; are you going to testify?" constituted "plain error" and instructing jury to disregard does not cure the error. State v. Gray (A.), 503 S.W.2d 457.

(1974) Prosecutor's comment "that is to say, that the defendant himself elected not to testify" is reversible error. State v. McNeal (A.), 517 S.W.2d 187.

(1987) Argument focusing on the lack of evidence offered to explain the presence of stolen property in possession of defendant who did not testify on his own behalf in trial for burglary and theft is not comment on the defendant's failure to testify in violation of this section. State v. Masterson, 733 S.W.2d 40 (Mo.App.S.D.)

---- end of effective  28 Aug 1939 ----

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