California, United States of America
The following excerpt is from People v. Bolen, A135545 (Cal. App. 2013):
Finally, we reject appellant's claim that the prosecutor committed misconduct by improperly suggesting the defense could have tested the methadone pills. During closing argument, defense counsel argued the methadone pills could be counterfeit because "there was no actual test done. None. . . . They could have tested it, but, no. Is it a knock-off? Is [it] actually Methadone? . . . [I]t was never tested. It's their burden of proof to actually test the substance." On rebuttal, the prosecutor could respond by arguing appellant had presented no evidence showing the pills were counterfeit. (People v. Cunningham (2001) 25 Cal.4th 926, 1026 ["[a]rguments by the prosecutor that otherwise might be deemed improper do not constitute misconduct if they fall within the proper limits of rebuttal to the arguments of defense counsel"].) Because the prosecutor's comments about methadone testing responded to defense counsel's argument, there was no misconduct.
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