What constitutes prosecutorial misconduct if a prosecutor makes use of deceptive or reprehensible methods to persuade either the trial court or the jury?

California, United States of America


The following excerpt is from People v. Nezey, 2d Crim. No. B237658 (Cal. App. 2014):

"'Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rightssuch as a comment upon the defendant's invocation of the right to remain silentbut is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" [Citation.]' [Citation.]" (People v. Fuiava (2012) 53 Cal.4th 622, 679.)

"If a prosecutorial misconduct claim is based on the prosecutor's arguments to the jury, we consider how the statement would, or could, have been understood by a reasonable juror in the context of the entire argument. [Citations.]" (People v. Woods (2006) 146 Cal.App.4th 106, 111.) "No misconduct exists if a juror would have taken the statement to state or imply nothing harmful. [Citation.]" (Ibid.)

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