Sexual Assault Conviction Reversed after Comment on Failure to Testify

A Connecticut appellate court has reversed a sexual assault of child conviction after the prosecutor improperly commented on the defendant’s failure to testify in his defense, implying that the jury should infer the defendant’s guilt from his silence.

In A.M., the defendant was accused of sexually assaulting a nine-year-old girl. During rebuttal argument, the prosecutor twice commented on the defendant’s failure to testify during trial. The prosecutor stated: “Counsel did not present his client to testify” and later “You’ve got to look at the credibility of the defendant as well. I mean, he didn’t testify.” Each time, the prosecutor juxtaposed the defendant’s failure to testify with his sworn statement and statements made to police officers, which were admitted during trial.

The defendant appealed, arguing that the prosecutor’s comments about his failure to testify violated his constitutional right to due process. The appellate court agreed and reversed his conviction.

The United States Supreme Court has held that the Fifth Amendment forbids prosecutors from commenting on the accused’s silence and implying that silence is evidence of guilt. For example of how Washington State applies this principle, see State v. MacDonald, 122 Wn. App. 804, 95 P.3d 1248 (2004).

Here, the Connecticut appellate court first considered whether the prosecutor’s remarks were improper. It found that the prosecutor used the fact that the defendant did not testify to suggest he was not credible, and thus guilty.

Next, the court considered whether the improper statements deprived the defendant of his due process right to a fair trial. The court determined that the prosecutor expressed her personal opinion on the defendant’s credibility by her statements, and the law prohibits such opinions. It noted that “a prosecutor, by virtue of her position with the state, can wield great influence over a jury though expressions of her opinion.”

The court found these comments “were made in conjunction with the fact that the state did not have a strong case.” As the state had no physical evidence, the credibility of the defendant was one of the central issues in the case. The court held the prosecutor’s comments violated the defendant’s constitutional right to a fair trial, and reversed the conviction.