§ 6.7 BURDEN SHIFTING

• Jurisdiction: Arizona

§ 6.7 BURDEN SHIFTING

State v. Fuller,143 Ariz. 571, 575, 694 P.2d 1185, 1189 (1985)

The prosecutor may properly comment upon the defendant's failure to present exculpatory evidence, so long as the comment is not phrased to call attention to the defendant's own failure to testify.

State ex rel. McDougall v. Corcoran (Keen),153 Ariz. 157, 735 P.2d 767 (1987)

Even where the defendant does not take the stand, the prosecutor may properly comment on the defendant's failure to present exculpatory evidence, which would substantiate defendant's story, as long as it does not constitute a comment on defendant's silence. Such comment is permitted by the well-recognized principle that the nonproduction of evidence may give rise to the inference that it would have been adverse to the party who could have produced it. When a DUI suspect requests and obtains...