In United States v. Cabrera, 201 F.3d 1243 (9th Cir. 2000), the Ninth Circuit Court of Appeals rejected a claim that the prosecutor improperly shifted the burden of proof or persuasion by arguing that the defendant failed to call witnesses to corroborate his testimony.
The Court held that a prosecutor's comment on a defendant's failure to call a witness does not shift the burden of proof, and is therefore permissible, so long as the prosecutor does not violate the defendant's Fifth Amendment rights by commenting on the defendant's failure to testify. See United States v. Williams, 990 F.2d 507, 510 (9th Cir. 1993); see also United States v. Vaandering, 50 F.3d 696, 701-02 (9th Cir. 1995)(holding that a prosecutor's comments highlighting the weaknesses in the defendant's case did not shift the burden of proof because the prosecutor did not comment on the defendant's failure to testify, and expressly told the jury that the government bore the burden of proof)(citing United States v. Mares, 940 F.2d 455, 461 (9th Cir. 1991)). (Id. at 1250.)
The Court held that Cabrera's Fifth Amendment rights were not implicated because he chose to testify in his own defense. Id.