where Yarber utilizes the virtual identification doctrine while Beecher had earlier disapproved of such in favor of a standard based upon “the possibility that a prosecutor’s comment could be understood by the jury as referenced to failure of defendant to testify .... ”
How later courts described this case
- where Yarber utilizes the virtual identification doctrine while Beecher had earlier disapproved of such in favor of a standard based upon “the possibility that a prosecutor’s comment could be understood by the jury as referenced to failure of defendant to testify .... ”
Written by the judges who cited it.
The opinion
MADDOX, Justice
(concurring specially.)
I think that the prosecutor’s statement in this case was a direct comment on the defendant’s failure to testify. Consequently, I think this case must be reversed. I disagree, however, with that portion of the opinion which reads as follows:
“Thus we hold today that where there is the possibility that a prosecutor’s comment could be understood by the jury as reference to failure of defendant to testify, § 6 is violated. We specifically disapprove any contrary cases which construe Code of Ala., Tit. 15 § 305, as requiring reversal only when there is virtually a direct identification of the defendant as the one who did not testify. Such a construction of Code of Ala., Tit. 15, § 305, is not countenanced by the constitutional protections afforded under Const, of 1901, § 6.”
I concur in part two of the opinion which holds that there was no showing of systematic exclusion of blacks from the Lawrence County jury venire.