Can a defendant bring a claim of misconduct against a prosecutor for referring to evidence that contradicts his testimony?

California, United States of America


The following excerpt is from People v. Anderson, 276 Cal.Rptr. 356, 52 Cal.3d 453, 801 P.2d 1107 (Cal. 1990):

Defendant failed to object, or seek an admonition, as to any of these remarks, and accordingly he cannot raise a claim of misconduct on appeal. (People v. Green, supra, 27 Cal.3d 1, 27, 164 Cal.Rptr. 1, 609 P.2d 468.) Nonetheless, we briefly review the merits of his argument that the prosecutor's comments violated [52 Cal.3d 479] his state and federal constitutional rights and constituted reversible misconduct.

The prosecutor is generally precluded from vouching for the credibility of her witnesses, or referring to evidence outside the record to bolster their credibility or attack that of defendant. (See People v. Harris (1989) 47 Cal.3d 1047, 1079, 255 Cal.Rptr. 352, 767 P.2d 619; People v. Guzman (1988) 45 Cal.3d 915, 941, 248 Cal.Rptr. 467, 755 P.2d 917, and cases cited.) In the present case, the prosecutor limited her remarks to facts of record, namely, the years of experience of the officers involved, and her "vouching" was clearly based on inferences reasonably drawn therefrom, rather than on her personal belief or knowledge. (See People v. Adcox (1988) 47 Cal.3d 207, 258-259, 253 Cal.Rptr. 55, 763 P.2d 906 [prosecutor's arguments were based on inferences warranted by the evidence, rather than personal belief].) We find no improper prosecutorial vouching here.

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