When will a court admit a prosecutor's prior statements about the crime in their closing argument?

Appellant has not demonstrated that his trial counsel was ineffective in failing to offer the prosecutor's prior statements about the crime because he has not demonstrated that such statements would have been admissible. The statements were not themselves evidence and were not probative of the underlying facts. "The prosecutor, after all, was neither a participant nor a witness, and has no knowledge of the facts other than those gleaned from the witnesses and other available evidence." (People v. Watts (1999) 76 Cal.App.4th 1250, 1263.)

As appellant notes, federal case law has recognized some circumstances in which a court may admit prior statements by counsel regarding the facts of the charged crime. In United States v. Salerno (2d Cir. 1991) 937 F.2d 797, 812, rev'd. on other grounds in United States v. Salerno (1992) 505 U.S. 317, 322, the court concluded that statements made by the prosecutor during closing argument in a former trial were not inadmissible per se, but were subject to a showing that (1) they involved an assertion of fact inconsistent with similar assertions in the subsequent proceeding; (2) they were equivalent to testimonial statements by the client; and (3) the inference to be drawn from the inconsistency is a fair one. (See also United States v. McKeon (2d Cir. 1984) 738 F.2d 26, 33 [applying same analysis to closing argument by defense counsel].)