Can a prosecutor present a criminal case premised on a legally incorrect legal theory to the jury?

California, United States of America


The following excerpt is from People v. Cardenas, G058071 (Cal. App. 2021):

"[P]resenting a jury with a criminal case premised on an incorrect legal theory usually does require reversal." (People v. Morales (2001) 25 Cal.4th 34, 42 (Morales).) However, a case can only be premised on a legally incorrect theory if it is presented by the court, through instructional error, to the jury. (Ibid.) Without improper instruction from the court, "[t]he prosecutor arguably misstated some law, but such an error would merely amount to prosecutorial misconduct [citation] during argument, rather than trial and resolution of the case on an improper legal basis." (Id. at p. 43.) Further: "When a defendant believes the prosecutor has made remarks constituting misconduct during argument, he or she is obliged to call them to the court's attention by a timely objection. Otherwise no claim is preserved for appeal. [Citation.]" (Id. at pp. 43-44.)

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