Prosecutorial Misconduct

Misconduct by Prosecutors is sometimes intentional…sometimes not. But whether it’s intentional or not doesn’t matter. Because Jurors get what they get at trials, so it’s important to have both the evidence and the arguments be within the law.

I’m using this page as a way to track Court decisions about what is Prosecutorial Misconduct per California state law.

As new cases come down, I’ll group them under the headings below. I’m going through a lot of cases and this will take some time to go through older cases to list the other main topics.

To make this like my other posts, I write this page like I write legal motions: I’ll state a rule of law and give the citation.

General rules about Prosecutorial misconduct:

To be able to appeal on grounds of prosecutorial misconduct, Defendant must first object timely, then ask the Court to admonish the Jury: “As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety.” People v. Ayala (2000) 23 Cal.4th 225, 284.

But what if the Judge overrules your objection? “[T]he absence of a request for a curative admonition does not forfeit the issue for appeal if `the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.'” People v. Hill (1998) 17 Cal.4th 800, 820.

Also, even if the claim is forfeited the Court can still use its discretion to address the issue. “[A]n appellate court may review a forfeited claim—and `[w]hether or not it should do so is entrusted to its discretion.'” In re Sheena K. (2007) 40 Cal.4th 875, 887, fn. 7.


What is Prosecutorial Misconduct, per California Law?

Prosecutorial Misconduct under state law involves “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.”‘ People v. Cunningham (2001) 25 Cal.4th 926, 1000. “[T]he question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.'” Cunningham at 1001.

This Misconduct can be intentional or unintentional: “Despite the usual formulation of the state-law standard in terms of deceptive or reprehensible methods, the prosecutor’s behavior need not be in bad faith in order to constitute reversible error; the impact on the defendant can be just as prejudicial if the conduct is inadvertent. People v. Bolton (1979) 23 Cal.3d 208, 213-214. For this reason, Courts say maybe Prosecutorial Misconduct should actually be called Prosecutorial Error. See People v. Hill (1998) 17 Cal.4th 800, 823, fn. 3.


What makes the Prosecutorial Misconduct reversible error?

“Under the federal Constitution, to be reversible, a prosecutor’s improper comments must `so infect the trial with unfairness as to make the resulting conviction a denial of due process.” People v. Rodriguez, decided 8/28/18 (internal citations omitted).


Examples of Proscutorial misconduct:

This is where I’ll keep the cases decisions of what is or is not either unlawful error or misconduct by the People.

Vouching for witnesses:

It is unlawful to vouch for a witness. Vouching can occur in various forms.

“An argument constitutes vouching if it bolsters a witness’s credibility by relying on matter outside the record, matter the jury might improperly accept based solely on the prestige and authority of the prosecutor’s office.” See People v. Rodriguez below (note this was first unpublished, but then published…see more below).

Vouching is unlawful because “such statements `tend to make the prosecutor his own witness—offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, “although worthless as a matter of law, can be `dynamite’ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.’ ‘Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.'” Again, citing People v. Rodriguez, cited below.

Saying a witness would not lie because they’d get in trouble if they did is misconduct:

From People v. Rodriguez, from 8/28/18 from the Court of Appeals of California, Fifth District (and officially published 9/5/18). Here, the People argued in closing “without evidence that law enforcement witnesses would not lie because of the professional, financial or legal harm they would suffer.” Specifically, the Prosecutor argued in closing:

  • Why would the Officer “put his entire career on the line. He would take the stand, subject himself to possible prosecution for perjury and lie and make up some story.” And why would this Officer would “…perjure himself before you and, for some reason, lie…”
  • Why would another officer “with a long career. His was over 20 years. So we’re supposed to believe that, for some reason, Officer Lowder would put his entire career with the Department of Corrections at risk, subject himself to possible prosecution for perjury.”

Rodriguez held “this case presents an example of improper vouching. The prosecutor’s argument that the officer witnesses would not lie because of the danger to their careers and the risk of prosecution for perjury relied on facts not in evidence.” “There was, of course, no evidence at trial that was relevant to any of these notions.”

“The statements of the prosecutor here at issue, by contrast, were not based on any of the evidence presented to the jury. Instead, they suggested the prosecutor knew things about disciplinary and legal risks faced by officers—things unknown to the jury, for which the jurors should take the prosecutor’s official word—that acted to ensure officers’ honesty.”

Although Rodriguez was initially not published, it was then certified for publication. The Court held the misconduct in Rodriguez was reversible error on all counts: “we conclude that the improper vouching by the prosecutor during his closing argument was reversible error with respect to all counts.”

Prosecutor committing misconduct for the purpose of triggering a mistrial.

See People v. Batts (2003) 30 Cal.4th 660: the Court concluded that double jeopardy principles not only barred a retrial after a prosecutor commits misconduct for the purpose of triggering a mistrial, the federal standard, but also if a prosecutor commits misconduct to thwart a reasonable prospect of acquittal.

Other examples:

  1. Prosecutor threatening Defendant with perjury if Defendant wants to testify. See my blog about People v. Force.
  2. Arguing for conviction because the People saying their case is reasonable.


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