What is the test for a claim of prosecutorial misconduct against a prosecutor who made comments to the jury before the trial?

California, United States of America


The following excerpt is from People v. Jensen, H041821 (Cal. App. 2017):

process." ' [Citations.] ' "But 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." ' " [Citations.]' [Citation.]" (People v. Cunningham (2001) 25 Cal.4th 926, 1000.) When the claim of prosecutorial misconduct "is based 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. [Citation.]' [Citations.]" (Id. at p. 1001.)

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