In what circumstances will a prosecutor be found guilty of misconduct if a defendant's refusal to testify was interpreted as a deceptive tactic or reprehensible method to obtain a conviction?

California, United States of America


The following excerpt is from People v. Gammage, B256154, B267058 (Cal. App. 2016):

assume some level of ambiguity in the prosecutor's comments, it did not rise to the level of a deceptive tactic or reprehensible method to obtain a conviction. (Cole, supra, 33 Cal.4th at p. 1202 [a prosecutor's misconduct that does not render trial fundamentally unfair, nevertheless "violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade'" the factfinder].) Moreover, we presume the jury relied on the court's instructions regarding the law, not argument by counsel, thus any residual ambiguity was clarified by the instruction that a defendant's decision not to testify may not be considered evidence of guilt. (See People v. Morales (2001) 25 Cal.4th 34, 47.)

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