What constitutes reversible misconduct for a federal prosecutor who makes comments about subpoena power to the defense?

California, United States of America


The following excerpt is from People v. Richmond, 2d Crim. No.B277406 (Cal. App. 2018):

Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such unfairness as to make the resulting conviction a denial of due process. (People v. Davis (2009) 46 Cal.4th 539, 612.) Here the prosecutor's comment about the defense having the subpoena power did not amount to a denial of due process.

Under California law a prosecutor commits misconduct when he uses "'deceptive or reprehensible methods'" to persuade the jury. (People v. Davis, supra, 46 Cal.4th at p. 612.) In such a case the misconduct is reversible only if it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct. (Ibid.)

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