Can a defendant be found not prejudiced by a prosecutor responding to a defense counsel's argument?

California, United States of America


The following excerpt is from People v. Farber, H037427 (Cal. App. 2013):

circumstance militating against any claimed prejudice is that remarks of a similar nature have been exchanged." (People v. Mason (1960) 184 Cal.App.2d 317, 362 [no prejudicial misconduct by prosecutor, who was responding to defense counsel's argument]; see also People v. Friend (2009) 47 Cal.4th 1, 35 [where defendant opened the door to certain evidence on direct examination, there was no prosecutorial misconduct when that same evidence was elicited on cross-examination].)

Even if trial counsel should have objected, and even if the objection had merit, we would conclude defendant was not prejudiced. Pursuant to CALCRIM No. 200, the trial court instructed the jury not to "let bias, sympathy, prejudice or public opinion influence your decision." Pursuant to CALCRIM No. 222, the trial court instructed the jury that "[n]othing that the attorneys say is evidence" and that the jury was required to "decide what the facts are in this case" based only on "the evidence that was presented in this courtroom." We presume the jury relied on the instructions, not the arguments of counsel, in reaching its verdict. (See People v. Morales (2001) 25 Cal.4th 34, 47.)

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