What Is a ''Griffin Error'' ?
Griffin v. California (1965) 380 U.S. 609 forbids either direct or indirect comment upon the failure of the defendant to take the witness stand.
The rule, however, does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses."
For example, in People v. Mitcham (1992) 1 Cal.4th 1027, the California Supreme Court found no Griffin error in the prosecutor's comments that the defendants there had called no witnesses in their own defense and that they did not put on a defense " 'because they didn't have one.' " (Mitcham, supra, 1 Cal.4th at pp. 1050-1051.)
The court concluded that these comments did not refer to the defendant's failure to testify, "but to the failure of the defense to call witnesses to contradict the testimony of the prosecution's witnesses or to offer any evidence in opposition to the prosecution's case." (Id. at p. 1051.)