context: Many courts have used the rationale of Lockett to uphold prosecutorial comment on the lack of evidence supporting a defendant's theory of the case when the defendant does not testify.
citation_a.signal: see
citation_a.parenthetical: prosecutor's comments on absence of facts in record supporting defendant's theory not violative
citation_a.sentence: See United States v. Burnett, 890 F.2d 1233, 1241-42 (D.C.Cir.1989) (prosecutor’s comments not improper if invited by defense counsel’s argument); United States v. Percy, 765 F.2d 1199, 1204 (4th Cir.1985) (prosecutor’s characterization of state’s evidence as “unrefuted and unrebutted” not error); Bontempo v. Fenton, 692 F.2d 954, 958-59 (3d Cir.1982) (prosecutor’s comments on absence of facts in record supporting defendant’s theory not violative), cert. denied, 460 U.S. 1055, 103 S.Ct. 1506, 75 L.Ed.2d 935 (1983); Butler v. Rose, 686 F.2d 1163, 1171-72 (6th Cir.1982) (prosecutorial commentary not error where defense counsel told jury he expected defendant to give exculpatory testimony).
citation_b.signal: but see
citation_b.identifier: 706 F.2d 161, 166
citation_b.parenthetical: prosecutor's remarks that government's evidence was uncontra-dicted reversible error where only defendant could have testified to contrary
citation_b.sentence: But see Raper v. Mintzes, 706 F.2d 161, 166 (6th Cir.1983) (prosecutor’s remarks that government’s evidence was uncontra-dicted reversible error where only defendant could have testified to contrary). Other decisions have upheld the propriety of such remarks under similar reasoning.