WAID
v.
STATE
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The Florida Supreme Court affirmed a conviction, holding that a prosecutor's comment on the defendant's failure to testify was permissible as a rebuttal to the defense counsel's own mention of the defendant's silence.
Yes, a prosecutor's comment on the defendant's failure to testify is permissible as a rebuttal when the defense counsel has already brought the defendant's silence to the jury's attention.
“A defendant may not reap the benefits of failure to testify, such as the escape of cross-examination, and then claim the protection the statute affords, if he plays upon that very failure.”
Establishes the principle that a defendant cannot use their silence to their advantage and then claim protection when the opposing side comments on it.
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Join FLexlaw to unlock all legal intelligenceDuring a trial, the defense counsel mentioned the defendant's failure to testify and the reasons for it. In response, the prosecuting attorney comment…
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Richard W. Ervin, Atty. Gen., and Leonard Pepper, Asst. Atty. Gen. for appellee. THOMAS, Justice.
The appellant's sole contention here is based on remarks of the prosecuting officer in the presence of the jury about the failure of the appellant to testify in his own behalf.
In support of the point he invokes Sec. 918.09, Florida Statutes 1949, and F.S.A., providing that a prosecuting attorney shall not be permitted "to comment on the failure of the accused to testify * * *."
But appellant's position is insecure for the simple reason that his counsel, while addressing the jury, introduced the subject by remarking upon the lack of testimony by the appellant, and the reason for it. What followed was nothing more than a retort by the attorney for the state.
A defendant may not reap the benefits of failure to testify, such as the escape of cross-examination, and then claim the protection the statute affords, if he plays upon that very failure. When he brings to the attention of the jury the want of testimony by him and the reason for the course he chose, he invites a rebuttal from his adversary, and of that he cannot complain. Affirmed.
SEBRING, C.J., and CHAPMAN and MATHEWS, JJ., concur.
Cases With Similar Vibessemantic neighbors from the corpus
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Singleton v. State, 183 So. 2d 245 (Fla. 2d DCA 1966)…bout by the ingenuous efforts of well-meaning but overzealous prosecuting attorneys in constantly seeking the loophole, the entering wedge, the side door, to get over to the jury indirectly what is forbidden directly. . Cf. Waid v. State, Fla.1952, 58 So. 2d 146; Nations v. State, Fla.App.1962, 145 So. 2d 259. . Cf. Hedges v. State, Fla.App.1964, 165 So. 2d 213. . Clinton v. State, 56 Fla. 57, 47 So. 389; Gray v. State, 42 Fla. 174, 28 So. 53; Smith v. United States, (CCA Fla.1956) 234 F. 2d 385; Fowler v…
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Odom v. State, 109 So. 2d 163 (Fla. 1959)…gthened by the absence here of any contention that the evidence did not establish the perpetration of rape. The factual situation we have so far related makes the present controversy somewhat similar to the one we considered in Waid v. State, Fla., 58 So. 2d 146, when we held that if counsel for a defendant remarked to a jury upon the lack of testimony by the defendant and the reason for it, reversal would not be justified by rebuttal argument containing reference to the plaintiff’s failure to take the witn…
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Adjmi v. State, 139 So. 2d 179 (Fla. 3d DCA 1962)…ing of the record that a prejudicial comment was made or that there is any reasonable possibility that the jury could have interpreted the remark in the manner appellants urge. The opinion of the Supreme Court of Florida in Waid v. State, Fla.1952, 58 So. 2d 146, contains a holding which we find more in point with the present case than the Gordon case, supra. In the Waid case the appellant’s attorney, while addressing the jury, had introduced the question of lack of testimony by the defendant. The court hel…
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