What is the test for a finding of prejudicial misconduct based upon comments made by a prosecutor to the jury?

California, United States of America


The following excerpt is from People v. Diaz, G055781 (Cal. App. 2019):

"In evaluating a claim of prejudicial misconduct based upon a prosecutor's comments to the jury, we decide whether there is a reasonable possibility that the jury construed or applied the prosecutor's comments in an objectionable manner. (People v. Cunningham (2001) 25 Cal.4th 926, 1019.) A judgment of conviction will be reversed based on prosecutorial misconduct "only when, after reviewing the totality of the evidence, we can determine it is reasonably probable that a result more favorable to defendant would have occurred absent the misconduct." (People v. Castillo (2008) 168 Cal.App.4th 364, 386.) "Arguments by counsel 'generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence, [citation], and are likely viewed as the statements of advocates; the latter . . . are viewed as definitive and binding statements of the law.'" (People v. McDowell (2012) 54 Cal.4th 395, 438.)

Here, the jury was instructed with CALCRIM No. 200. It states, in part, "If you believe the attorneys' comments on the law conflict with my instructions, you must follow my instructions." (CALCRIM No. 200.) "A jury will generally be presumed to have followed an admonition to disregard improper evidence or comments, as '[i]t is only in the exceptional case that "the improper subject matter is of such a character that its effect . . . cannot be removed by the court's admonitions."'" (People v. Pitts (1990) 223

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Cal.App.3d 606, 692.) This instruction reduced any chance that the jury would have relied on the prosecutor's comments.

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