What is the test for alleging prosecutorial misconduct in a criminal case?

California, United States of America


The following excerpt is from People v. Hernandez, F074763 (Cal. App. 2019):

Allegations of prosecutorial misconduct are analyzed under federal and state law standards. "A prosecutor's misconduct 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.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct 'that does not render a criminal trial fundamentally unfair' violates California law 'only if it "'involves the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.'"'" (People v. Harrison (2005) 35 Cal.4th 208, 242.)

"'To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.'" [Citation.] There are two exceptions to this forfeiture: (1) the objection and/or the request for an admonition would have been futile, or (2) the admonition would have been insufficient to cure the harm occasioned by the misconduct." (People v. Panah (2005) 35 Cal.4th 395, 462.) With these principles in mind, we address defendant's contentions.

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