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

California, United States of America


The following excerpt is from People v. Cardoso, F069505 (Cal. App. 2016):

"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such " 'unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial. [Citation.]" (People v. Parson (2008) 44 Cal.4th 332, 359.) "Because we consider the effect of the prosecutor's action on the defendant, a determination of bad faith or wrongful intent by the prosecutor is not required for a finding of prosecutorial misconduct. [Citation.]" (People v. Crew (2003) 31 Cal.4th 822, 839.)

"In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review. [Citation.]' [Citation.]" (People v. Parson, supra, 44 Cal.4th at p. 359.) "When a claim of misconduct is based on the prosecutor's comments before the jury, ' "the question is whether there is a reasonable

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