State v. Mainaaupo

Concurring and Dissenting Opinion by

ACOBA, J.

I concur, except I believe that the comments by Plaintiff-Appellee-Respondent State of Hawaii (the prosecution) in closing argument did impermissibly shift the burden of proof in the case of Defendant-Appellants Petitioner Mark K. Lopez (Lopez) even under the rule set forth in United States v. Bautista, 23 F.3d 726, 733 (2d Cir.1994), (noting that while “the government may comment on a defendant’s failure to call witnesses to support his factual theories[,]” it “may not ... go further and suggest that the defendant has the burden of producing…