Is it misconduct to state or imply that defense counsel fabricated a defense?

Case law holds "[a] prosecutor may vigorously challenge the validity of any defense, and can characterize the testimony of a witness, including the defendant, as untruthful, but to state or imply that defense counsel has fabricated a defense is generally misconduct. [Citations]." (People v. Seumanu (2015) 61 Cal.4th 1293, 1337 (Seumanu).) Although the line between arguing "the defense was unsupported by facts and thus a sham" and "defense counsel 'put forward' a sham" is sometimes fine, it divides fair

Page 21

comment on the evidence from comments on defense counsel's personal honesty that should be avoided. (Id. at 1338.)