stating that prosecutor's argument that "the defense would have called its [DNA] expert to the stand if it had seriously disputed the State's evidence" did not shift the burden of proof to the defense and was a permissible "comment on the defendant's failure to produce witnesses and evidence" because it did "not fault the defendant for exercising his right not to testify"
How later courts described this case
- stating that prosecutor's argument that "the defense would have called its [DNA] expert to the stand if it had seriously disputed the State's evidence" did not shift the burden of proof to the defense and was a permissible "comment on the defendant's failure to produce witnesses and evidence" because it did "not fault the defendant for exercising his right not to testify"
- holding that the State did not impermissibly shift the burden to the defense by arguing the defense would have called its expert to the stand if it had seriously disputed the State’s evidence where the prosecutor’s comments were actually rebuttal to defense counsel’s argument attacking the State’s scientific evidence
- holding that there was no harm because the State’s DNA evidence was in fact reliable, notwithstanding evidence that the State failed to use reagent blanks “to. eliminate the possibility of cross-contamination" and that the protocol was later upgraded to include reagent blanks
- holding that, even though the trial court refused to hold a hearing outside the jury’s presence and abandoned its gatekeeping function with respect to the last two Kelly requirements, “the error was harmless because the State’s DNA evidence was in fact reliable”
Written by the judges who cited it.
The opinion
MANSFIELD, J.,
concurs in the judgment only on point three, , and otherwise joins the opinion.