What is the test for a claim of prosecutorial misconduct on appeal?

California, United States of America


The following excerpt is from People v. McDonald, G054148 (Cal. App. 2019):

We evaluate claims of prosecutorial misconduct under well-established standards. "A prosecutor's conduct violates the Fourteenth Amendment to the federal Constitution when it infects the trial with such unfairness as to make the conviction a denial of due process. 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 trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) Generally, in order to raise any alleged errors on appeal, they must have first been brought to the attention of the trial court. (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.) Specifically, a defendant forfeits any complaint of prosecutorial misconduct on appeal unless he or she objected to the alleged misconduct at the time it occurred and also requested that the jury be admonished to reject the alleged impropriety. (See People v. Ervine (2009) 47 Cal.4th 745, 806.)

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