What is the test for misconduct in a criminal case when a prosecutor's comments to the jury before the jury are deemed to have prejudiced the trial?

California, United States of America


The following excerpt is from People v. Carlin, G044752 (Cal. App. 2012):

"When a claim of misconduct is based on the prosecutor's comments 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."' [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 29.) "'In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements. [Citations.]" (People v. Dykes (2009) 46 Cal.4th 731, 772.) "Under the federal Constitution, a prosecutor commits reversible misconduct only if the conduct infects the trial with such '"unfairness as to make the resulting conviction a denial of due process."' [Citation.] By contrast, our state law

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requires reversal when a prosecutor uses 'deceptive or reprehensible methods to persuade either the court or the jury' [citation] and '"it is reasonably probable that a result more favorable to the defendant would have been reached without the misconduct"' [citation]." (People v. Davis (2009) 46 Cal.4th 539, 612.)

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