Prosecutorial Comment About Defendant's Failure to Testify
When a reference is indirect, the test for determining whether prosecutorial comment constitutes a constitutionally impermissible reference to a defendant's failure to testify is whether "the language used was manifestly intended to be or was of such a character that the jury would naturally and necessarily take it to be comment on the defendant's failure to testify."
Harkness v. State, 107 Nev. 800, 803, 820 P.2d 759, 761 (1991) (quoting United States v. Lyon, 397 F.2d 505, 509 (7th Cir. 1968)).
A prosecutor's comments should be viewed in context, and "a criminal conviction is not to be lightly overturned on the basis of a prosecutor's comments standing alone . . . ." United States v. Young, 470 U.S. 1, 11, 84 L. Ed. 2d 1, 105 S. Ct. 1038 (1985).
If the prosecutor's comments are best understood as an attempt to dissuade the jury from relying on appellant's factual assertions, and to instead focus the jury's deliberation on the evidence adduced at the trial - Under these circumstances, the jury could not "naturally and necessarily" consider the prosecutor's comments as being directed at appellant's failure to testify.