Defendant as Witness

A defendant in a criminal action or proceeding cannot be compelled to be a witness against himself but if he offers himself as a witness he may be cross- examined by the prosecuting attorney and the attorney for any codefendant as to all matters about which he was examined in chief. His neglect or refusal to be a witness cannot in any manner prejudice him nor be used against him at the trial or proceeding by the prosecuting attorney. NOTE: Section 75.60 is based on former § 1323. Compare Cal. Const. Art. I, § 13, Cal. Evid. Code §§ 413, 761, 773, 930 and 940. See also § 1.11 (d), (e). It should be noted that where there are co-defendants, an attorney for the codefendant may cross- examine. Moreover, the codefendant (although not the prosecuting attorney) may comment on a failure of the other codefendant to take the stand. See DeLuna v. United States, 308 F.2d 140 (5th Cir. 1962), rehearing denied 324 F.2d 375 (1963) (discussed at length in 8 Moore, Federal Practice &14.04[3] (1974). The prejudice arising from such comment is obvious and is accordingly cause for severance for trial.