Is a prosecutor improperly disparaging defense counsel by calling the defense's hiding the evidence theory a red herring?

California, United States of America


The following excerpt is from People v. Diaz, 2d Crim. No. B196463 (Cal. App. 2/4/2008), 2d Crim. No. B196463 (Cal. App. 2008):

Diaz contends the prosecutor improperly disparaged defense counsel by calling his hiding the evidence theory, "a red herring" and stating, "when you have a case that's obvious ... you've got to throw something out there." But a prosecutor may tell jurors the evidence shows a defense is fabricated and may use "colorful terms" to make the point. (People v. Pinholster (1992) 1 Cal.4th 865, 948.) Here he was responding to a defense accusation about prosecutorial conduct and trying to argue that no evidence supported the claim.

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