What is the legal test for a defense counsel to object on the grounds of prosecutorial misconduct?

California, United States of America


The following excerpt is from People v. Herrera, F060345 (Cal. App. 2011):

The issue of prosecutorial misconduct is forfeited on appeal if not preserved by timely objection and request for an admonition in the trial court. (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) If an objection has not been made, "'"the point is reviewable only if an admonition would not have cured the harm caused by the misconduct"'" (id. at pp. 1000-1001) or if an objection would have been futile (People v. Hill (1998) 17 Cal.4th 800, 820-821).

Here, defense counsel never objected on the grounds of prosecutorial misconduct and did not request that the jury be admonished, thereby forfeiting the claim on appeal. (People v. Cunningham, supra, 25 Cal.4th at p. 1000.) But even on the merits, we find appellant's claims lacking, and for that reason we do not need to discuss his further claim of ineffective assistance of counsel for failing to object.

Appellant points to the following two instances in which he claims prosecutorial misconduct occurred.

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