What is the test for a defense objection to the question "assumed facts not in evidence" or "misstated evidence"?

California, United States of America


The following excerpt is from People v. Mayfield, 14 Cal.4th 668, 60 Cal.Rptr.2d 1, 928 P.2d 485 (Cal. 1997):

"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, supra, 1 Cal.4th 324, 447, 3 Cal.Rptr.2d 106, 821 P.2d 610.)

1. Assumption of Facts Not in Evidence

Defendant asserts that the prosecutor committed misconduct on numerous occasions by asking questions that insinuated facts that the prosecutor knew the defendant would deny, even though the prosecutor had no intention of proving those facts by other means. (See People v. Visciotti, supra, 2 Cal.4th 1, 52, 5 Cal.Rptr.2d 495, 825 P.2d 388 [improper to examine a witness solely to imply or insinuate the truth of the facts about which questions are posed]; accord, People v. Price, supra, 1 Cal.4th 324, 481, 3 Cal.Rptr.2d 106, 821 P.2d 610.) At trial defendant objected on this ground (that is, that the question "assumed facts not in evidence" or "misstated the evidence") as follows:

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