What constitutes prosecutorial misconduct in the federal and state courts?

Under the federal Constitution, a prosecutor commits misconduct by using "'deceptive or reprehensible methods to persuade the jury'" that "'infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.]'" (People v. Parson (2008) 44 Cal.4th 332, 359.) Under the state Constitution, a prosecutor commits misconduct even when his actions "do not result in a fundamentally unfair trial." (Id. at p. 359.) "[W]hen the claim [of prosecutorial misconduct] focuses upon comments made by the prosecutor before the jury, the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion." (People v. Morales (2001) 25 Cal.4th 34, 44 (Morales), italics added; see People v. Crew (2003) 31 Cal.4th 822, 839 ["A defendant's conviction will not be reversed for prosecutorial misconduct, however, unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct."].)

In People v. Cook (2006) 39 Cal.4th 566, a criminalist testified that the bullets used in two murders had been fired from the same weapon. (Id. at p. 607.) The court held that the prosecutor did not impermissibly seek to shift the burden of proof by asking the criminalist "if the defense could have subjected the autopsy bullets to its own testing by an independent laboratory." The court observed that "the prosecutor did not ask whether the defense had a duty to do independent testing, merely whether the defense had

Page 15