The prosecutorial tactic of burdening a defendant’s exercise of constitutional rights has appeared in a variety of contexts. Prosecutors have asked juries to infer guilt based on a defendant’s decision not to testify, not to call witnesses, to remain silent after being given Miranda warnings, to go to trial, to secure the assistance of counsel, to refuse to consent to a warrantless search, and to testify. In all of these instances, courts have found the prosecutor’s remarks to constitute misconduct.
Bennett L. Gershman, Burdening Constitutional Rights: The Supreme Court's License to Prosecutors, Crim. Just. J., Summer 2000, at 51, available at http://digitalcommons.pace.edu/lawfaculty/236/.