What is the test for a claim of prosecutorial misconduct?

California, United States of America


The following excerpt is from People v. Byrd, A144835 (Cal. App. 2018):

The rules governing prosecutorial misconduct claims are well-established. " ' "A prosecutor's . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct 'so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.' " ' [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ' " 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " ' [Citation.] . . . Additionally, when the claim 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. (Ibid.)" (People v. Samayoa (1997) 15 Cal.4th 795, 841.)

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