What is the test for finding that a prosecutor's conduct violates the Fourteenth Amendment?

California, United States of America


The following excerpt is from People v. Hernandez, C056856 (Cal. App. 12/2/2008), C056856. (Cal. App. 2008):

"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, and particularly pertinent here, 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." (People v. Morales (2001) 25 Cal.4th 34, 44.) Acts of prosecutorial misconduct do not justify reversal of a defendant's conviction "unless it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct." (People v. Crew (2003) 31 Cal.4th 822, 839.)

"`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.' [Citations.]" (People v. Earp (1999) 20 Cal.4th 826, 858.)

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