It Is Not Prosecutorial Error to Refute Defense’s Arguments

State v. Arroyo, No. 128,013, (Kan. Feb. 13, 2026). 

Staff Editor Mary Duncan

March 14, 2026

Issue: Does a Prosecutor always error by suggesting that the defendant has just as much opportunity to put evidence before a jury as the Prosecution does? 

Answer: No. There is no prosecutorial error where a Prosecutor’s statements, when taken in context, are not an impermissible commentary on the defendant’s failure to testify.

Facts: The Defendant’s closing relied heavily on rhetoric involving the imbalance of power in the criminal justice system, the Prosecution having the burden of proof, and the Prosecution offering benefits in exchange for testimony.

In rebuttal, the Prosecutor said:

“I want to make something perfectly clear. It is our burden. . . They don’t have to do anything. But do not be misled for a moment that if there is a piece of evidence they want you to see or a witness that they think you should hear from that helps their cause, they have just as much opportunity to put that before you as we do.” 

The Defendant argued that the Prosecutor’s rebuttal constituted prosecutorial error.

Discussion: In reviewing claims for prosecutorial error, Kansas courts first consider whether the Prosecutor exceeded the wide latitude they are afforded in conducting the case. One such error occurs when a Prosecutor comments—even indirectly—on a defendant’s failure to testify. 

However, Kansas courts have recognized that permissibility is context dependent. Here, there was no error in the Prosecutor reminding the jury that a defendant can offer evidence too, when rebutting the defense’s arguments about the imbalance of power and the State’s systematic advantages. The Prosecutor’s remarks were tailored to refute the defense’s rhetoric.

Alternatively compelling for the court, the Prosecutor also argued that the State was merely rebutting the defendant’s inference that the Prosecution’s evidence was lacking or not credible, by informing the jury that the defense has the power to introduce evidence.

Key Authorities:  

State v. King, 417 P.3d 1073 (Kan. 2018) (articulating Kansas’s two-step framework when reviewing claims of prosecutorial error) 

State v. Martinez, 468 P.3d 319 (Kan. 2020) (holding it is generally error for a prosecutor to comment, even indirectly, on a defendant’s failure to testify) 

State v. Hachmeister, 464 P.3d 947 (Kan. 2020) (explaining that the State may rebut inferences of noncredible evidence)