Does a prosecutor have the authority to accuse a defense counsel of fabricating a defense?

California, United States of America


The following excerpt is from People v. Bye, C087438 (Cal. App. 2020):

We also disagree that the prosecutor's statements necessarily implied that defense counsel believed defendant was guilty rather than merely asserted that the defense case was weak. While it is improper for a prosecutor to accuse defense counsel of fabricating a defense, a prosecutor "has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (People v. Bemore (2000) 22 Cal.4th 809, 846, see also People v. Medina (1995) 11 Cal.4th 694, 759 [no misconduct where prosecutor said counsel can " 'twist a little, poke a little, try to draw some speculation, try to get you to buy something' "].) We agree with defendant that the facts and law are necessarily on a defendant's side if there is reasonable doubt that a defendant committed the charged offenses; in that respect the argument "makes no sense" and was improvidently made. But given that the prosecutor emphasized the importance of the reasonable doubt standard instruction, did not water down that standard or shift the burden of proof to the defense, and did not personally attack defense counsel's credibility, we conclude that defense counsel's objections to the prosecutor's statements, if made, were not reasonably likely to have changed the outcome of the trial.

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