Section 20.13 Right Against Self-Incrimination

• Library: Criminal Practice 2012 Supp

D. (§20.13) Right Against Self-Incrimination

Add the following paragraph after the citation “Id. at 12 (citations omitted)” on page 20–25:

State v. Chunn, 657 S.W.2d 292 (Mo. App. E.D. 1983) (cited
in the original section), was overruled by State v. Neff,
978 S.W.2d 341 (Mo. banc 1998), which stated that a mistrial resulting from an isolated reference to a defendant’s failure to testify is extreme. An admonition to the jury will suffice.

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See State v. Barnum, 14 S.W.3d 587 (Mo. banc 2000), in which the Court said that the use of descriptors such as “uncontradicted” and “undisputed” by a prosecutor does not violate a defendant’s rights under § 546.270, RSMo 2000. The court in State v. Spencer, 50 S.W.3d 869 (Mo. App. E.D. 2001) (citing Neff, 978 S.W.2d at 344), said that direct reference to the defendant’s failure to testify occurs when the prosecutor uses words such as “defendant,” “accused,” and “testify” or their equivalent. An indirect reference is one reasonably apt to direct the jury’s attention to the defendant’s failure to testify. When an objection is made and overruled, a direct reference will almost always require a reversal; but an indirect reference will only require reversal if there was a calculated intent to magnify that decision so as to draw the jury’s attention to it. But in addition to the type of reference made, the appellate court must also consider the context in which the comment was made. The prejudicial impact of such a statement is a matter within the sound discretion of the trial court. The prejudice that can occur from these comments can normally be cured by an instruction to the jury.

Also note that the defendant has the right to raise the issue, and if so, the prosecutor may discuss the issue on those terms. State v. Wright, 978 S.W.2d 495 (Mo. App. W.D. 1998).

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State v. Powell, 682 S.W.2d 112 (Mo. App. E.D. 1984) (cited in the original section), also points out a question concerning the defendant’s right to not testify is not evidence, so if there is no answer because of a timely objection, such a question presents no error. This premise is included in the instructions to the jury. See MAI-CR 3.02 (2011). The lack of objection in State v. Green, 798 S.W.2d 498 (Mo. App. S.D. 1990) (cited in the original section), can be cured by plain error if the prejudice resulted from the...