Is it improper for a prosecutor to misstate the law generally, and particularly in an attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt?

California, United States of America


The following excerpt is from People v. Gould, No. A148090 (Cal. App. 2018):

" ' "[I]t is improper for the prosecutor to misstate the law generally [citation], and particularly in an attempt to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements." ' " (People v. Lloyd (2015) 236 Cal.App.4th 49, 62.) However, the prosecutor did not misstate the law here. He began his closing argument by merely telling the jury it could "only consider what's actually been admitted," could not consider "anything that hasn't been admitted, you can't consider anything else, and you cannot speculate." This was a correct statement of law, consistent with the court's subsequent instruction to the jury that it was to decide what happened "based only on the evidence that has been presented to you in this trial." The prosecutor neither said nor implied anything about the jury's right to consider the failure of the prosecution to present any logical witnesses or material evidence, to the extent this had a bearing on whether or not the prosecutor proved guilt beyond a reasonable doubt. (See, e.g., People v. Bell (1989) 49 Cal.3d 502, 539 [counsel's "[c]omment on the failure to call a logical witness is proper"].)

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