In People v. Zarazua, A163474 (Cal. Ct. App. November 21, 2022), a prosecutor repeatedly misgendered the criminal defendant at trial, in the jury's presence. Defense counsel moved for a mistrial and a curative admonition, but the trial court denied the motion. The criminal defendant appealed, arguing that the failure to use his preferred pronouns constituted prejudicial prosecutorial misconduct.
To prevail on a claim of prosecutorial misconduct premised on the prosecutor’s remarks to the jury, the defendant must show that, in the context of the argument as a whole and the instructions given to the jury, there was a reasonable likelihood the jury understood or applied the comments in an improper or erroneous manner. Under federal law, prosecutorial misconduct may result in reversal if the error was not harmless beyond a reasonable doubt. Under state law, it may result in reversal if there was a reasonable likelihood of a more favorable verdict in the absence of the challenged conduct.
The California First District Court of Appeal found that assuming the prosecutor’s misgendering of the defendant constituted misconduct, it was harmless in this case. Counsel for both parties conducted voir dires on gender identity. Defense counsel warned prospective jurors that prosecution witnesses might misgender the defendant and counsel for both parties acknowledged the defendant’s gender identity and urged the jurors not to let gender bias influence their decision. Additionally, the trial court instructed the jurors not to let bias of any kind, including gender identity bias, affect their decision. Lastly, the evidence of the defendant’s guilt was overwhelming and largely uncontested. Thus, the Court found that there was no indication that the prosecutor’s misgendering of the defendant influenced the verdict and there was no realistic possibility that the defendant would have obtained a more favorable result but for the misgendering.
The Court stated that trial courts have an obligation to ensure litigants and attorneys are treated with respect, courtesy, and dignity and this includes the use of preferred pronouns. The Court explained that when court proceedings fall short of that, judges should take affirmative steps to address the issue. Furthermore, the Court acknowledged that there may be instances when misgendering a party results in a denial of due process, but this was not such a case.
The Court affirmed the defendant’s conviction.