Can a prosecutor commit reversible misconduct if they use deceptive or reprehensible methods to persuade either the trial court or the jury?

California, United States of America


The following excerpt is from People v. Johnson, B222848 (Cal. App. 2012):

"[A] prosecutor commits reversible misconduct if he or she makes use of 'deceptive or reprehensible methods' when attempting to persuade either the trial court or the jury, and when it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rightssuch as a comment upon the defendant's invocation of the right to remain silentbut is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action '"so infected the trial with unfairness as to make the resulting conviction a denial of due process."' [Citation.]" (People v. Rundle (2008) 43 Cal.4th 76, 157, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th

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390, 421.) "[W]hen the claim focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion. [Citation.]" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

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