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

California, United States of America


The following excerpt is from People v. Osorio, G053092 (Cal. App. 2017):

"The standards under which we evaluate prosecutorial misconduct may be summarized as follows. 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. Furthermore, . . . 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. [Citation.]" (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. This long-standing rule is commonly referred to as "'waiver,'" but it is more accurately described as "'forfeiture.'" (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2 [waiver is the intentional relinquishment of a known right; forfeiture is the loss of right by failing to timely assert it].) A defendant forfeits any complaint of prosecutorial misconduct on appeal unless he timely 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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