What is the test for a claim of prosecutorial misconduct based on remarks to the jury?

California, United States of America


The following excerpt is from People v. Swinney, B299452 (Cal. App. 2020):

" 'To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Seumanu (2015) 61 Cal.4th 1293, 1337.) We " 'view the statements in the context of the argument as a whole.' " (People v. Rodriguez (2020) 9 Cal.5th 474, 480.)

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