In Griffin v. California, 380 U.S. 609, (1965) a California case, the defendant was convicted of murder and sentenced to death. (Griffin, supra, 380 U.S. at pp. 609, 611.) In the guilt phase of trial, he did not testify. (Id. at p. 609.) In closing arguments, the prosecutor emphasized the defendant's failure to testify, asserting that only he could explain the incriminating circumstances, yet he withheld his knowledge from the jury. (Id. at pp. 610-611.) The trial court gave the jury an instruction, consistent with the law of California at the time, that unfavorable inferences could properly be drawn from the defendant's failure to testify and explain or deny evidence against him concerning matters within his knowledge. (Id. at p. 610.) The prosecutor argued during rebuttal: "'There is no evidence whatsoever to contradict the fact that a witness saw defendants over the victim. And there is no denial at all that they were there robbing the victim. The defendants are guilty beyond any reasonable doubt ....'" (People v. Vargas, supra, 9 Cal.3d at p. 474.) The court concluded that Griffin error was committed because the term "'denial' connoted a personal response by the accused himself" because "only defendant himself could 'deny' his presence at the crime scene." (Id. at p. 476.) However, the court further concluded that the error was harmless beyond a reasonable doubt. (Id at pp. 476, 481.) The court noted that the prosecutor's remark "was brief and mild, and amounted to no more than an indirect comment upon defendant's failure to testify without suggesting that an inference of guilt should be drawn therefrom." (Id. at p. 479.) The court also observed that "cases which have considered the prejudicial effect of errors similar to those committed in the instant case almost uniformly have found those errors to be harmless." (Ibid.) The United States Supreme Court held that allowing a prosecutor to comment on, and a jury to consider, a defendant's failure to testify violates the Fifth Amendment's self-incrimination clause. (Griffin, supra, 380 U.S. at pp. 611-613.) "Comment on the refusal to testify is a remnant of the 'inquisitorial system of criminal justice,' , which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege. It cuts down on the privilege by making its assertion costly." (Id. at p. 614.) The United States Supreme Court held that the privilege prevented a prosecutor from commenting on a criminal defendant's failure to testify and a judge from instructing a jury that a criminal defendant's silence is evidence of guilt. According to the court, such comments or instructions would amount to a penalty against the defendant for exercising a constitutional privilege. Id. at 614. Ohio courts have applied Griffin, stating that neither a prosecutor nor a judge may comment on a criminal defendant's failure to testify. See, e.g., Akron v. Thomas, Summit App. No. 21504, 2003 Ohio 4784, P12; State v. Fields (1973), 35 Ohio App.2d 140, 145, 300 N.E.2d 207. The United States Supreme Court held that comment on a defendant's failure to testify violates his or her constitutional right to remain silent. The court's holding, however, does not bar comment on the state of the evidence or the failure of the defense to introduce material evidence or to call anticipated witnesses. (People v. Bradford (1997) 15 Cal.4th 1229, 1339, 939 P.2d 259.) "Although the Griffin case involved direct reference to the defendant's failure to testify, the decision has been interpreted as prohibiting the prosecution from so much as suggesting to the jury that it may view the defendant's silence as evidence of guilt. Indeed, the California Supreme Court has declared, 'Under the rule in Griffin, error is committed whenever the prosecutor . . . comments, either directly or indirectly, upon defendant's failure to testify in his defense.' " (People v. Guzman (2000) 80 Cal.App.4th 1282, 1287-1288, quoting People v. Medina (1995) 11 Cal.4th 694, 755, 906 P.2d 2.)