lack defense in Washington

2018However, a prosecutor may not “comment on the lack of defense evidence because the defendant has no duty to present evidence [and] the State bears the whole burden of proving each element of the case beyond a reasonable doubt.” State v. Cleveland, 58 Wn.

2009The Missing Witness Doctrine Does Not Apply ¶19 A prosecutor may not comment “on the lack of defense evidence because the defendant has no duty to present evidence.” State v. Cleveland, 58 Wn.

2012“The lack of this warning, by itself, would render the flowrater unsafe.” Teagle, 89 Wn.2d at 156 .

2008The lack of this warning, by itself, would render the flowrator unsafe.” Teagle, 89 Wn.2d at 156 . ¶29 This portion of the analysis in Teagle was tangential, in that the trial court found the flowrator was not reasonably safe absent warning of the danger of measuring liquids at high pressures without taking precautions.

2017"A prosecutor generally cannot comment on the lack of defense evidence because the defense has no duty to present evidence." Thorgerson, 172 Wn.2d at 466 - 67; State v. Cheatam, 150 Wn.2d 626, 652 , 81 P.3d 830 (2003).

2014State v. Thorgerson, 172 Wn.2d 438, 443 , 258 P. 3d 43 ( 2011). 6 44208 -6 -II Milam argues that the prosecutor twice attempted to shift the burden of proof to him his failure to the State' A prosecutor during closing argument by commenting on rebut s case. may not comment " on the lack of defense evidence because the defendant has no duty to present evidence." State v. Dixon, 150 Wn.

2025“A prosecutor may commit misconduct if [they] mention[ ] in closing argument that the defense did not present witnesses or explain the factual basis of the charges or if [the prosecutor ] states that the jury should find the defendant guilty simply because [the defendant] did not present evidence to support [the] defense theory.” State v. Jackson, 150 Wn.

2024However, “the mere mention that defense evidence is lacking does not constitute prosecutorial misconduct or shift the burden of proof to the defense.” State v. Jackson, 150 Wn.

2024Generally, the prosecutor may not “‘comment on the lack of defense evidence because the defense has no duty to present evidence.’” State v. Fedoruk, 184 Wn.

2023Generally, the prosecutor may not “‘comment on the lack of defense evidence because the defense has no duty to present evidence.’” State v. Fedoruk, 184 Wn.

2021“However, a prosecutor is entitled to point out the improbability or lack of evidentiary support for the defense theory.” State v. Osman, 192 Wn.

2021However, “a prosecutor is entitled to point out the . . . lack of evidentiary support for the defense theory of the case.” State v. Osman, 192 Wn.

2020App, 46, 54, 207 P.3d 459 (2009)).

2014App. 46, 54 , 207 P. 3d 459 ( 2009) ( quoting State v. Cleveland, 58 Wn.

2020Mutch. 171 Wn.2d at 663-65 ; Land. 172 Wn.

2014Id. at 600-03 .

2015In Ellis , the Supreme Court refused to follow a holding in another Nelson worker compensation case, Nelson v. Industrial Insurance Department, 104 Wash. 204 , 176 P. 15 (1918), despite legislative reenactment of the statute, because of the lack of analysis by the earlier court. ¶25 Assuming a legislature’s silence is tantamount to approval, the Washington Legislature also amended RCW 51.28.050 in 2007, thirteen years after the 1984 Wilbur decision.

2015In Ellis , the Supreme Court refused to follow a holding in another Nelson worker compensation case, Nelson v. Industrial Insurance Department, 104 Wash. 204 , 176 P. 15 (1918), despite legislative reenactment of the statute, because of the lack of analysis by the earlier court. ¶25 Assuming a legislature’s silence is tantamount to approval, the Washington Legislature also amended RCW 51.28.050 in 2007, thirteen years after the 1984 Wilbur decision.

2014App. 927, 931 , 210 P.3d 1025 (2009)), review denied, 176 Wn.2d 1001 (2013), the general rule is that the State “cannot comment on the lack of defense evidence because the defense has no duty to present evidence.” State v. Cheatam, 150 Wn.2d 626, 652 , 81 P.3d 830 (2003). ¶49 In Glasmann, the prosecutor used a PowerPoint presentation featuring images taken from a security camera video, pictures of the victim’s injuries, and the defendant’s booking photograph, with added commentary and text taken from trial testimony or witnesses’ recorded statements. 175 Wn.2d at 701 .

2014App. 918, 930 , 271 P. 3d 952 ( 2012), review denied, 176 Wn.2d 1001 ( 2013), the . general rule is that the State " cannot comment on the lack of defense evidence because the defense has no duty to present evidence." State v. Cheatham, 150 Wn.2d 626, 652 , 81 P. 3d 830 2003). 18 No. 43693 -1 - II In Glasmann, the prosecutor used a PowerPoint presentation featuring images taken from a security camera video, pictures of the victim' s injuries, and the defendant' s booking photograph, with added commentary and text taken from trial testimony or witnesses' recorded statements. 175 Wn.2d at 701 .

2014Rockwell, 141 Wn.

2014Rockwell, 141 Wn.

2011Id.

2011Id.

2011State v. Costich, 152 Wash.2d 463, 477 , 98 P.3d 795 (2004) (An appellate court may sustain a trial court on any correct ground). ¶68 Applying Elmi here, there is sufficient evidence, both circumstantial and direct, to support Abuan's second degree assault conviction: When the drive-by shooting began, the three people in the garage saw and heard shouts and gunfire, and they dropped to the floor.

2011State v. Costich, 152 Wn.2d 463, 477 , 98 P.3d 795 (2004) (An appellate court may sustain a trial court on any correct ground.). ¶68 Applying Elmi here, there is sufficient evidence, both circumstantial and direct, to support Abuan’s second degree assault conviction: When the drive-by shooting began, the three people in the garage saw and heard shouts and gunfire, and they dropped to the floor.

2011State v. Costich, 152 Wash.2d 463, 477 , 98 P.3d 795 (2004) (An appellate court may sustain a trial court on any correct ground). ¶68 Applying Elmi here, there is sufficient evidence, both circumstantial and direct, to support Abuan's second degree assault conviction: When the drive-by shooting began, the three people in the garage saw and heard shouts and gunfire, and they dropped to the floor.

2011State v. Costich, 152 Wn.2d 463, 477 , 98 P.3d 795 (2004) (An appellate court may sustain a trial court on any correct ground.). ¶68 Applying Elmi here, there is sufficient evidence, both circumstantial and direct, to support Abuan’s second degree assault conviction: When the drive-by shooting began, the three people in the garage saw and heard shouts and gunfire, and they dropped to the floor.

2011Moreover, we note that in Brooks v. Tennessee, 406 U.S. 605, 612-13 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972), the United States Supreme Court held it was unconstitutional to require defendants to testify prior to hearing other evidence. [6] Although Martin does not address the fifth Gunwall factor, we have held that it supports an independent state constitutional analysis in every case and have consistently stated that our "consideration of this factor is always the same; that is that the United States Constitution is a grant of limited power to the federal government, while the state constitut

2011Moreover, we note that in Brooks v. Tennessee, 406 U.S. 605, 612-13 , 92 S.Ct. 1891 , 32 L.Ed.2d 358 (1972), the United States Supreme Court held it was unconstitutional to require defendants to testify prior to hearing other evidence. [6] Although Martin does not address the fifth Gunwall factor, we have held that it supports an independent state constitutional analysis in every case and have consistently stated that our "consideration of this factor is always the same; that is that the United States Constitution is a grant of limited power to the federal government, while the state constitut

2009RAP 2.5(a)(3); Scott, 110 Wn.2d at 688 .

2009RAP 2.5(a)(3); State v. Scott, 110 Wash.2d 682, 688 , 757 P.2d 492 (1988).

2006In State v. Pavelich, 150 Wash. 411, 420 , 273 P. 182 (1928), this court held that a prosecuting attorney may comment on a lack of defense evidence so long as the prosecuting attorney does not directly refer to the defendant’s decision not to testify.

2006In State v. Pavelich, 150 Wash. 411, 420 , 273 P. 182 (1928), this court held that a prosecuting attorney may comment on a lack of defense evidence so long as the prosecuting attorney does not directly refer to the defendant’s decision not to testify.

2005As I indicated in Willis, 153 Wn.2d at 375-78 (Sanders, J., dissenting), such instruction allows juries to find a defendant “armed” on the basis of “mere proximity.” This lack of instruction leads our courts to resolve voluminous sufficiency-of-the-evidence challenges when a jury follows instructions and finds a weapon available and accessible, but appellate courts end up deciding in each case on the issue of whether there was a “nexus.” Jacobellis v. Ohio, 378 U.S. 184, 197 , 84 S. Ct. 1676, 1683 , 12 L.

2005As I indicated in Willis, 153 Wn.2d at 375-78 (Sanders, J., dissenting), such instruction allows juries to find a defendant “armed” on the basis of “mere proximity.” This lack of instruction leads our courts to resolve voluminous sufficiency-of-the-evidence challenges when a jury follows instructions and finds a weapon available and accessible, but appellate courts end up deciding in each case on the issue of whether there was a “nexus.” Jacobellis v. Ohio, 378 U.S. 184, 197 , 84 S. Ct. 1676, 1683 , 12 L.

2000Birdwell, 6 Wn.

2000Birdwell, 6 Wash.App. at 297-98 , 492 P.2d 249 .

1996See also City of Seattle v. Mesiani, 110 Wn.2d 454 , 755 P.2d 775 (1988); O’Day v. King County, 109 Wn.2d 796 , 749 P.2d 142 (1988); State v. Stroud, 106 Wn.2d 144 , 720 P.2d 436 (1986).

1996See also City of Seattle v. Mesiani, 110 Wn.2d 454 , 755 P.2d 775 (1988); O’Day v. King County, 109 Wn.2d 796 , 749 P.2d 142 (1988); State v. Stroud, 106 Wn.2d 144 , 720 P.2d 436 (1986).

1996See also City of Seattle v. Mesiani, 110 Wn.2d 454 , 755 P.2d 775 (1988); O’Day v. King County, 109 Wn.2d 796 , 749 P.2d 142 (1988); State v. Stroud, 106 Wn.2d 144 , 720 P.2d 436 (1986).

1996See also City of Seattle v. Mesiani, 110 Wn.2d 454 , 755 P.2d 775 (1988); O’Day v. King County, 109 Wn.2d 796 , 749 P.2d 142 (1988); State v. Stroud, 106 Wn.2d 144 , 720 P.2d 436 (1986).

2025“Generally, a prosecutor cannot comment on the lack of defense evidence because the defendant has no duty to present evidence.” State v. Cheatam, 150 Wn.2d 626, 652 , 81 P.3d 830 (2003). “[B]ecause the State bears the burden of proving its case beyond a reasonable doubt, and the defendant bears no burden,” it is misconduct for the prosecutor to make an argument that “shifts the burden to the defense.” Emery, 174 Wn.2d at 760 .