What is the test for a claim of prosecutorial misconduct based on a remark made by a prosecutor?

California, United States of America


The following excerpt is from People v. Silva, 106 Cal.Rptr.2d 93, 21 P.3d 769, 25 Cal.4th 345 (Cal. 2001):

The claim of prosecutorial misconduct based on this remark is not reviewable. "To preserve for appeal a claim of prosecutorial misconduct, the defense must make a timely objection at trial and request an admonition; otherwise, the point is reviewable only if an admonition would not have cured the harm caused by the misconduct." (People v. Price (1991) 1 Cal.4th 324, 447, 3 Cal.Rptr.2d 106, 821 P.2d 610.) Here, the defense, after raising a timely objection, expressly declined the court's offer to admonish the jury to disregard the prosecutor's remark. Because an admonition would have cured any harm, the failure to request an admonition renders the claim of misconduct unreviewable.

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