Section 25.7 Defendant

• Library: Criminal Practice 2012 Supp

1. (§25.7) Defendant

If the defendant offers no testimony, using the words “defendant,” “accused,” and “testify” or their equivalent is usually grounds for reversible error. State v. Corpier, 793 S.W.2d 430 (Mo. App. W.D. 1990); City of Cape Girardeau v. Jones, 725 S.W.2d 904 (Mo. App. E.D. 1987). A defendant has an absolute right to be free from self-incrimination. U.S. Const. amend. V; Mo. Const. art. I, § 19; § 546.260, RSMo 2000.

Specifically, the courts have found error in the following situations:

· When the prosecutor argued that the jurors have not seen anyone get on the stand and testify about exactly what was on the defendant’s mind, State v. Kempker, 824 S.W.2d 909 (Mo. banc 1992)

· When the prosecutor argued that self-defense could only be proved by one of two people—one of whom was dead, State v. Feltrop, 803 S.W.2d 1 (Mo. banc 1991)

· When the prosecutor said, “we want to ask you what you were doing with these guys,” State v. Nelson, 719 S.W.2d 13 (Mo. App. W.D. 1986) (finding this comment to be an inappropriate comment on the defendant’s decision not to testify)

· When the...