What is the test for a claim of misconduct in a criminal case brought by a defendant that the prosecution made comments that reduced the burden of proving reasonable doubt with common sense?

California, United States of America


The following excerpt is from People v. Harris, A157427 (Cal. App. 2020):

Appellant contends these comments equated reasonable doubt with common sense, which lowered the prosecution's burden of proof and therefore constituted misconduct. Appellant acknowledges that defense counsel did not object to these comments, but asserts that any objection or request for an admonition would have been futile under existing California law. (See People v. Potts, supra, 6 Cal.5th at p. 1035 [a claim of prosecutorial misconduct is preserved for review despite a failure to object "if an objection would have been futile or a request for admonition ineffectual"].)

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