Under Georgia law, the State may not comment at trial upon a defendant's silence or failure to come forward, even when the defendant testifies on his own behalf. Harrelson v. State 312 Ga. App. 710 (2011); Grissom v. State, 300 Ga. App. 593 (2009); Scott v. State 305 Ga. App. 710 (2010). The State cannot present evidence that the defendant knew the police were looking for him, but failed to contact the police. Johnson v. State, 293 Ga. App. 728 (2008); McClarin v. State, 289 Ga. 180 (2011). In order for remarks to constitute an impermissible comment on the defendant's silence, "there must be a finding that the prosecutor's manifest intent was to comment on the defendant's failure to testify or that the jury would naturally and necessarily understand the remarks as a comment on the defendant's silence." Rosser v. State, 284 Ga. 335 (2008).
An improper comment on a defendant's exercise of his right to remain silent or be represented by counsel does not necessarily require that a defendant's conviction be set aside. Jefferson v. State, 312 Ga. App. 842 (2011). To reverse a conviction the evidence of the defendant's election to remain silent must point directly at the substance of the defendant's defense or otherwise prejudice the defendant in the eyes of the jury. Martin v. State, 290 Ga. 901 (2012); Benham v. State, 259 Ga. 249 (1989); Gooden v. State, 316 Ga. App. 12 (2012). Informing the jury of a defendant's termination of a custodial interview and invocation of the right to counsel does not amount to an improper comment on the right to remain silent warranting the reversal of his conviction. Rowe v. State, 276 Ga. 800 (2003). Pointing out that a defendant who waived his Miranda rights and gave an oral statement but also refused to sign a waiver or make a written statement is not a comment on his right to remain silent. Hill v. State, 290 Ga. 493 (2012).
Evidence that a defendant asks for an attorney and ends an interview is not necessarily prejudicial. See Martin v. State, 290 Ga. 901, 903 (1) (a) (725 SE2d 313) (2012); Williams v. State, S23A1159 (January 17, 2024).
A police officer's statement that he wanted to get a statement from the defendant is not a comment on the defendant's assertion of the right to remain silent. Dunn v. State, 291 Ga. 551 (2012).
If the defendant first places the evidence before the jury the prosecutor can comment on the evidence. Kendrick v. State, 290 Ga. 873 (2012).