This section contains the nature of the case and procedural background.

The trial court instructed the jury that: As to any evidence or facts against him which the defendant can reasonably be expected to deny or explain because of facts within his knowledge, if he does not testify or if, though he does testify, he fails to deny or explain such evidence, the jury may take that failure into consideration as tending to indicate the truth of such evidence and as indicating that among the inferences that may be reasonably drawn therefrom those unfavorable to the defendant are the more probable. The prosecutor also made numerous references to D's failure to testify. The death penalty was imposed, and the California Supreme Court affirmed. The Supreme Court granted certiorari to consider whether comment on the failure to testify violated the Self-Incrimination Clause of the Fifth Amendment which we made applicable to the States by the Fourteenth in Malloy v. Hogan.

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