Prosecutorial Misconduct, generally
Category > Prosecutorial Misconduct, generally
Updated 2/26/2024The prosecutor committed misconduct during the SVP proceedings by telling defendant he could be charged with perjury if he testified at the trial.Defendant was a sexually violent predator receiving treatment in a state hospital, who challenged the court’s order denying his petition to be placed in the conditional release program known as CONREP. He was denied a fair trial on the issue because the prosecutor suggested that if defendant testified he could face perjury charges. This was unfair and served to intimidate the defendant who then chose not to testify. The court then added to the error by refusing to admit defendant’s “release plan” into evidence.id: 26387
Updated 2/3/2024The prosecutor erred by suggesting the defendant’s presumption of innocence began to lift when the first witness testified.The prosecutor committed misconduct when arguing to the jury that the defendant’s presumption of innocence started to lift as soon as the first witness testified. This was a mischaracterization of the law since the presumption of innocence continues into deliberations. However, the error was harmless given the overwhelming evidence of guilt. id: 27398
The prosecutor committed misconduct by attempting to elicit inadmissible evidence as he continued to question the witness on a topic after the court repeatedly sustained defense counsel’s objections.The prosecutor committed misconduct by continuing to question a defense investigator about the time and expense associated with his investigation after the trial court repeatedly sustained defense counsel’s objections. By continuing to pursue that line of questioning, the prosecutor engaged in a deliberate attempt to elicit inadmissible evidence. The error was harmless where the court repeatedly sustained the objections so the jury never heard the inadmissible testimony.id: 24345
The prosecutor erred by referring to the murder victim’s family as his clients.The prosecutor erred by referring to the murder victim’s family as his clients. Prosecutors are supposed to be impartial and don’t have clients. They work for the public as a whole and speak for all of the people.id: 24273
The trial court properly dismissed the child molest charges for outrageous government conduct after the prosecutor inserted a false confession into the transcript of defendant’s interrogation and gave it to defense counsel.The prosecutor deliberately altered an interrogation transcript to include a confession from the defendant, and sent it to defense counsel at a time when counsel was trying to persuade the defendant to settle the case. This was egregious misconduct that directly interfered with the attorney-client relationship and it prejudiced defendant’s right to counsel. Dismissal of the charges was the appropriate sanction for the prosecutor’s misconduct. id: 24032
The prosecutor committed prejudicial misconduct at defendant’s SVP trial by telling jurors they would be hated if they found for the defense, that defendant committed other unreported acts, and that there would be no parole if he won.The prosecutor engaged in a pattern of misconduct at defendant’s SVP trial, including his argument to the jury that finding for the defendant would subject them to ridicule in the community, that defendant who he described as a “prolific child molester” had other victims who did not report abuse, that defendant would not be on parole if released, and by telling the jurors they had been “groomed” by defendant. The misconduct required reversal of the SVP finding.id: 23012
The prosecutor erred in closing argument by presenting a police officer witness in his bloodstained uniform, emphasizing the witness’s emotions and vouching for his case by affixing a police pin to his jacket. Defendant was charged with capital murder for killing a police officer. The prosecutor committed misconduct by emphasizing in closing argument that another testifying officer wore his bloodstained uniform and cried on the stand. This was inflammatory conduct designed only to appeal to the jury’s passions. The prosecutor further erred during the argument by affixing a pin to his jacket signifying brotherhood with the victim as this amounted to improper vouching. The error was harmless in light of the strength of the prosecution’s case.id: 22594
The prosecutor committed misconduct by leaking a story to the press.Defendant argued the prosecutor committed prejudicial misconduct by “leaking” a story to the press during jury selection in the capital case. The prosecutor said he often spoke with the reporter on cases and merely directed her to a portion of the transcript. The prosecutor’s actions violated his duty to act impartially, but the error was harmless as only a single alternate juror saw the newspaper article.id: 22828
The prosecutor engaged in pervasive misconduct by impugning defense counsel, the defense expert, the defense strategy and by referring to the potential sentence during argument and suggesting the jurors had a "right" to convict defendant. The prosecutor engaged in a pervasive pattern of misconduct throughout the trial which rendered the trial fundamentally unfair and required reversal of all convictions. He improperly impugned the defense counsel and defense mental health expert by mentioning that they had worked together previously and attacked the rape victim in that case. He disparaged the defense expert by suggesting the expert made up his conclusions only to get paid. He unfairly suggested defense counsel acted unfairly by thoroughly cross-examining a prosecution witness, and that counsel coached defendant. He acted improperly in his own argumentative questioning of defendant and by referring to defendant's potential sentence during closing argument. And he improperly informed jurors that they had a "right" to convict defendant and should exercise that right.id: 21991
The prosecutor committed misconduct at the penalty phase by improperly injecting evidence of a throat cutting in rebuttal. The prosecutor committed misconduct at the penalty phase by introducing in rebuttal inflammatory aggravating evidence regarding “a throat cutting” against a person that defendant had not referred to earlier. However, the error was not prejudicial where the court immediately repeated the word “sustained” several times and admonished the jurors to disregard the question.id: 21679
The prosecutor committed misconduct by attempting to inject irrelevant, inflammatory evidence when questioning defendant.The prosecutor committed misconduct by attempting to inject extraneous evidence of defendant’s propensity for violence, when he asked if defendant had thrice kicked in the door of his grandmother’s house. However, the court’s immediate response to disregard the question, and the admonishment of the prosecutor cured any possible prejudice. id: 21677
The prosecutor committed misconduct by asking a question that directly violated a pretrial evidentiary ruling.The prosecutor committed misconduct by asking a question of a witness that directly violated a pretrial evidentiary ruling. However, the misconduct was harmless where defense counsel’s immediate objection prevented the answer and the court then admonished the jurors to disregard the question.id: 21199
The prosecutor committed misconduct by laughing during defendant’s testimony.The prosecutor committed misconduct by laughing during defendant’s testimony but the error was harmless where the trial court did not find that it disrupted the proceedings.id: 21198
The prosecutor committed misconduct by presenting evidence of defendant’s arrests that did not result in convictions.The prosecutor committed misconduct by eliciting evidence that defendant had been arrested for numerous crimes of which he was never convicted. The trial court had previously ruled such testimony was inadmissible. However, the error was harmless in light of the overwhelming evidence of defendant’s guilt. id: 20801
The prosecutor may have acted improperly in requiring defense witnesses to demonstrate gang signs for the jury.The prosecutor may have committed misconduct by requesting defense witnesses to demonstrate gang signs for the jury. However, any error was harmless and not inflammatory in the case which involved substantial gang evidence. id: 20802
The prosecutor committed misconduct by defying a court order when referring to the contents of the defense investigator’s report.The prosecutor committed misconduct in cross-examining defendant when he referred to the contents of a defense investigator’s report that the court had ruled inadmissible. However, there was no prejudice as there was little chance the reference to the improper material affected the guilt phase.id: 20497
The prosecutor violated defendant's Massiah rights and likely committed misconduct by interrogating defendant after the complaint was filed, but the failure to object forfeited the issue on appeal.The prosecutor violated defendant's Sixth Amendment rights under Massiah by interrogating her concerning the subject matter of a felony complaint previously filed against her. However, defendant's failure to object at trial precluded appellate review of the issue. Moreover, while the interrogation may be viewed as prosecutorial misconduct, it was not so egregious as to justify outright dismissal of the charges. Finally, reversal of the conviction was not required due to the ineffective assistance of trial counsel in failing to object to the use of the statement at trial because it was impossible to conclude on the face of the record that trial counsel lacked a tactical reason for failing to object.id: 18853
A strong curative admonition rendered harmless the prosecutor's misconduct in asking whether the defense had the gloves tested knowing the defense had no access to do such testing.The prosecutor committed misconduct by asking whether the defense attempted to have defendant's gloves tested for gunshot residue because she knew defendant's attorney never had access to any test results. However, the error was harmless where the court gave a strong curative instruction and it was presumed that the jurors obeyed the admonition.id: 19880
A prosecutor may commit misconduct and violate a defendant's right to present evidence by conditioning a codefendant's plea agreement on a promise not to testify on the defendant's behalf.Defendant argued the prosecutor committed misconduct and violated his right to compulsory process by conditioning a codefendant's plea bargain on his promise not to testify on defendant's behalf. The conviction was reversed for other reasons but the court noted the serousness of this claim even though defendant failed to show the codefendant's testimony would have been helpful.id: 19388
Prosecutor led the jury to believe that the accomplice had no history of violence when he knew that to be untrue.The prosecutor misstated the evidence in asserting that the accomplice's 1976 conviction was for rape by threat when the record was silent on the point. However, the error did not require reversal where the jury heard of the accomplice's violent proclivities.id: 12456
Prosecutor may not argue inconsistent versions of the crimes to two different juries.Witness' testimony at the two different trials differed in significant areas, and the prosecutor may have erred in arguing inconsistent versions of the crimes to the two juries. However, defendant raised no objections to the argument and therefore the issue was not cognizable on appeal.id: 12457
Prosecutor committed misconduct in cross-examining the defense expert regarding statements which both parties stipulated were inadmissible.Defense expert offered his opinion that the eyewitness identification of defendant as the killer was not reliable. In cross-examining the expert the prosecutor read statements from a police report that the parties had stipulated would not be admitted. Moreover, he continued to read from the report after defense counsel's objection had been sustained. The error was not prejudicial since the statement (regarding the defendant's possession of a gun the day earlier) did not directly implicate defendant in the crime and was cumulative of other evidence regarding defendant's weapon possession.id: 12449
Error in the prosecutor's failure to anticipate the officer's volunteered remark was harmless where it could not have affected the verdict.During the prosecutor's direct examination of the police officer, the officer volunteered that he knew defendant from this case and prior cases. To the extent that the officer's comment fell under the heading of prosecutorial misconduct any error was harmless given the overwhelming strength of the People's case.id: 12442
Prosecutor erred in allowing the doctor to testify regarding a report when he knew the doctor was referring to the wrong report.Prosecutor knew that the victim had denied being molested when interviewed by the doctor. He then called the doctor to testify as to the victim's claim of molestation. The prosecutor should have known the doctor was referencing the wrong report, but rather than stopping there, he then asked her the nature of the claim and inquired further. The prosecutor's conduct was prejudicial and denied defendant a fair trial.id: 12455
Prosecution committed prejudicial misconduct in making disparaging remarks about defense counsel, questioning their ethics and accusing them of wasting time.Interspersed throughout the trial, the two prosecutors made comments which disparaged defense counsel, questioned their tactics, competence and/or ethics and accused them of wasting time. In finding that the error was prejudicial, the court found that to set forth all of the examples would literally take many hundreds of pages.id: 12447
Evidence supported the findings that officers offered inducements to jailhouse informants for their testimony and that the prosecution failed to correct the informant's false testimony regarding the inducements.Evidence supported the referee's findings that offers of assistance or inducements were made by the prosecution or law enforcement officers to jailhouse informants prior to defendant's trial and were not disclosed to the defense. This contradicted the informant's trial testimony that no inducements were offered in exchange for their testimony. The absence of a guarantee that the informants would receive a specified benefit as a result of their testimony provided no basis for relieving the prosecution of its obligation to correct the informant's false and misleading testimony at trial. The error did not require reversal given the strength of the evidence provided by defendant's own statement to the police and by the numerous noninformant witnesses describing defendant's statements and demeanor shortly after the crimes.id: 12443
Prosecutorial misconduct did not warrant reversal where DA investigator violated an order and divulged information to the deputy AG prosecuting the case where no significant privileged material was divulged.Appellant moved to disqualify the district attorney's office based on bias as appellant alleged a conflict of interest in that, at the time of his arrest he was investigating a story for the newspaper regarding the involvement of the son of a deputy D.A. in a homicide. The motion was denied. He refiled the motion a year later claiming the D.A.'s office had gained access to the defense case during a search of his residence. The D.A.'s office was recused. The investigator who conducted the search was ordered not to discuss the content of privileged materials found during the search with the Attorney General's office. This order was violated. Appellant argued the prosecutorial misconduct was so egregious as to warrant dismissal. However, the court conducted a hearing following the violation and determined no significant privileged material had been divulged and allowed appellant to renew the motion during trial if the facts warranted it. Appellant did not renew the motion.id: 12461
Cumulative impact of prosecutor's improper remarks required reversal where the evidence on the key issue of mental state was ambiguous.The prosecutor committed misconduct in counseling the jury to save its tears for the tragic victim, in asking the jurors for an explanation to the victims, in hinting that the jury could abdicate its concern for appellant by relying on the court to show mercy on him, by invoking the jurors' memories of hideous mass shootings, by ridiculing the reasonable doubt standard, and by expressing his personal belief as to the testimony of witnesses. The principal issue in the case was the degree of the crime and that issue turned solely on defendant's mental state. The evidence on that issue was ambiguous and it is reasonably probable that the prosecutor tipped the scales of justice against defendant on the only significant issue before the jury. The cumulative impact if the instances of misconduct required reversal of the conviction.id: 12440
Prosecutor's comments during voir dire regarding gang problems and daily drive-by shootings did not constitute prejudicial misconduct.Appellant argued the prosecutor committed misconduct during voir dire when he commented that there is a tremendous gang and violence problem in Los Angeles and that not a day goes by where you don't pick up the newspaper and read about a senseless drive-by shooting. While the comment was not condoned it largely repeated defense counsel comments and stated what is common knowledge. Moreover, any potential prejudice was cured by the court's admonition.id: 12458
Prosecutor committed misconduct in questioning the witness regarding his custodial status where the witness entered the courtroom prior to the jury to avoid prejudice caused by the witness being in custody.The trial court permitted a defense witness to be brought into the courtroom before the jury entered because the witness was in custody and this would insure defendant would not be prejudiced by that fact. However, the prosecutor committed misconduct in questioning the witness thereafter regarding his custodial status. The misconduct was not ameliorated by the court who refused to admonish the jury to disregard the questioning where the court stated it did not want to focus the jury's attention on the improper question.id: 12450
Dismissal was required where the prosecutor eavesdropped upon privileged attorney-client communications in the courtroom.A prosecutor may not use the courtroom as a place to intentionally and surreptitiously eavesdrop upon a defendant's conversation with his attorney. Where the prosecutor uses the courtroom as a place to eavesdrop upon privileged attorney-client communications which results in the acquisition of confidential information, dismissal is the appropriate remedy.id: 12441
Prosecutor committed prejudicial misconduct in withholding critical discoverable evidence regarding its two key witnesses and in presenting testimony and arguing these witnesses received no benefits and would later be prosecuted.The prosecutor did not disclose during discovery information he knew or should have known about benefits received by the accomplice witnesses. Because he assisted one of the witnesses in avoiding deportation, he was not justified in eliciting testimony that they had not received promises in return for their testimony and the District Attorney intended to prosecute them later. The prosecutor further misrepresented his intentions when he told the jury in closing argument that the accomplice witnesses would be prosecuted. The prosecutor's misconduct was prejudicial and his convictions were reversed.id: 12451
Pervasive misconduct by the prosecutor, including misstating facts and law, and derogatory comments toward defense counsel, required reversal of conviction and death sentence.Defendant was convicted of special circumstances murder and sentenced to death. The prosecutor committed several instances of misconduct. She misstated the evidence by attributing the blood found on the murder weapon to be the murder victim's, she mischaracterized the law and evidence by claiming no similar crimes had been committed since defendant's arrest, she misstated the law on reasonable doubt and circumstantial evidence, she made repeated derogatory remarks about defense counsel before the jury, she intimidated a defense witness by threatening a perjury prosecution, she relied on Biblical doctrine at the penalty phase and misrepresented defendant's prior record. The prosecutorial misconduct along with other errors required reversal of defendant's conviction.id: 15915
Prosecutor committed misconduct in violating the court's pretrial order to avoid reference to defendant's numerous aliases.Prior to trial, the court instructed the prosecutor that he could refer to only one of defendant's aliases. The prosecutor later committed misconduct in referring to defendant's use of numerous aliases to evade taxes and police contact. The error was harmless in light of the overwhelming evidence of guilt and the fact that the prohibited references did not suggest defendant's involvement in any violent crimes.id: 15917
The prosecutor erred in seeking to elicit the inadmissible opinion regarding defendant's capacity to form the required intent.The prosecutor's question seeking to elicit the defense expert's inadmissible opinion regarding defendant's capacity to form the required intent at the time he committed the crimes, and the prosecutor's subsequent remarks that he was willing to "open the door on that issue" were improper. However, the error was not prejudicial where the improper question and comments constituted an isolated instance in a lengthy and otherwise well-conducted trial.id: 15920
Prosecutor erred in eliciting testimony that a defendant pleading insanity could not be examined by the prosecution absent the defendant's consent.The prosecution committed misconduct at the sanity phase by intentionally eliciting testimony on cross-examination of a defense psychiatrist to the effect that the prosection did not have a right to have a defendant pleading insanity examined by a psychiatrist without his consent, and the court erred in admitting evidence in the form of such testimony. However, the error was harmless where there was no basis for assuming the jury believed additional evidence about defendant's mental condition would have been more effective in impeaching the defense experts than was the testimony of the experts called as prosecution witnesses who were appointed by the court.id: 15918
The prosecutor erred by cross-examining a defense expert witness with hypothetical questions that were based on crimes for which no evidence was presented and by later arguing she had such evidence but chose not to present it.The prosecutor repeatedly erred at the penalty phase by using hypothetical questions about other offenses when cross-examining the defense psychiatrist. The questioning was improper because the prosecutor never introduced any evidence to support any of the hypothetical questions. The error was aggravated in closing argument when the prosecutor suggested she had evidence to support the questions which she chose not to present. This was misconduct. However, the errors were harmless where the court instructed the jury not to assume the facts underlying a hypothetical question were true, and that the prosecutor did not present any evidence of other criminal activity by the defendant. id: 17085
Prosecutor's isolated reference to a polygraph in questioning the eyewitness was not prejudicial where the court immediately told the jurors to disregard the question. The prosecutor asked the only witness, on direct examination, whether she had been given a polygraph. She said "yes." While the prosecutor's question may have amounted to misconduct, no prejudice appeared where the court immediately ordered the question stricken and told the jurors to disregard it.id: 17379
The prosecutor's brief reference to an excluded witness in response to the court's unexpected question did not constitute prejudicial misconduct.The trial court ruled the prosecutor could not present Detective Hopley in her rebuttal case. Thereafter, in the presence of the jurors, the court asked if the prosecutor had any other witnesses. The prosecutor responded "Only Detective Hopley." The response did not constitute prejudicial misconduct since it was a brief reference in response to an unexpected question and did not infect the trial with unfairness.id: 17292
Any misconduct in asking a defense witness if he only wanted to give the answers defendant wanted was harmless.While cross-examining a defense witness regarding defendant's intoxication on the night of the murders, the witness equivocated on an answer. The prosecutor asked "You don't want to just give the answers he wants, do you?" Any error in the questioning was harmless where defendant presented other significant evidence of his intoxication, but the jury nevertheless rejected the defense.id: 17316
Prosecutor's argumentative questions when cross-examining defendant were not prejudicial. During cross-examination of defendant the prosecutor asked argumentative questions regarding defendant's selective use of the truth and why he had to kill the victim. However, the misconduct was not prejudicial as the objections were sustained, and defendant's answers did not damage the defense.id: 17407
Defense counsel was not ineffective in failing to object to the prosecutor's cross-examination of defendant as to whether other witnesses lied during their testimony.Defendant argued the prosecutor committed misconduct during his cross-examination of defendant by repeatedly asking him whether other witnesses had lied during their testimony. While there is competing authority on the issue of whether such questioning is misconduct, the issue was not resolved since defendant did not show that counsel's failure to object to the questioning constituted ineffective assistance of counsel.id: 17523
Prosecutor committed misconduct by overtly defying the court's ruling but the error was harmless where the jury heard only one brief response to the improper matter.Defendant failed to appear for his second day of trial. The prosecutor informed the court he intended to argue that defendant's flight could be considered as consciousness of his guilt. The court forbid such argument questioning whether the proposition applied in a trial setting. The prosecutor informed the court that he would defy the ruling because the law was on his side. When he approached the topic during closing argument, the court told the jurors to disregard defendant's absence. The prosecutor's defiance of the court's ruling, following considerable discussion constituted prosecutorial misconduct. However, the error was harmless where the jury heard but one brief reference to the defendant's absence. The Court of Appeal referred the matter to the State Bar for further proceedings.id: 17609
Prosecutor's reference to his inability to cross-examine defendant after his allocution was harmless.In the penalty phase, defendant made an allocution to the jury by answering three questions: 1) Do you want to live?; 2) Why?; and 3) What do you hope to accomplish if you receive a life sentence? The trial court limited cross-examination to these areas and precluded questions relating to the crime. At the end of defendant's statement the prosecutor said he had no questions "Based on the court's earlier ruling." The comment was not sufficiently egregious to violate the federal constitution, and if it violated the state standard it was not prejudicial.id: 18172
Prosecutor committed misconduct by repeatedly asking defendant whether the officers were lying when they testified to various facts.The prosecutor's "were they lying" questions to defendant were improper because they sought his inadmissible lay opinion about the officer's veracity, invaded the province of the jury to determine witness credibility, and were irrelevant to any issue in the case. The prosecutor committed misconduct by repeatedly asking defendant about each aspect of the officer's testimony that differed from defendant's. She used the "were they lying" questions to berate the defendant and inflame the passions of the jury. Moreover, she called one of the officers in rebuttal to say he was not lying which further emphasized defendant's inadmissible opinion. However, the error did not require reversal since it was not reasonably probable the jurors would have believed defendant's testimony absent the misconduct.id: 18201
The prosecutor knowingly failed to correct a false impression created by a witness who testified the prosecution had done him no favors.The prosecutor knowingly failed to correct a false impression, created by a witness's testimony that the prosecution had not done the witness any favors that might reflect on his credibility. The impression was false because a prosecution investigator facilitated an arrangement with the proprietor of a boarding house under which the witness received room and board in return for IOU's backed by the reward money the witness was hoping to receive. The prosecutor exploited the issue in his argument to the jury. However, the false impression created by the testimony could not reasonably have affected the judgment of the jury.id: 18561
The prosecutor committed misconduct arguing inconsistent and factually irreconcilable theories in two trials, attributing to each defendant culpable acts that could have been committed by only one person.Defendants Sakarias and Waidla were convicted, in separate trials, of special circumstance murder and sentenced to death. In each trial the prosecutor presented factual theories inconsistent with those presented at the codefendant's trial - telling each jury the charged defendant struck the fatal blow. The prosecutor violated Sakarias' due process rights by intentionally and without good faith justification arguing inconsistent and irreconcilable factual theories in the two trials. The violation prejudiced Sakarias and his death sentence was vacated. However, Waidla was not entitled to relief where the available evidence supported the prosecutor's theory in his case.id: 18399
The prosecutor committed misconduct by having discussions with defendant regarding possible concessions in his case outside the presence of counsel.Defendant was charged with a drug offense, but was facing a life term because of strike priors. The prosecutor committed misconduct by calling defendant as a witness at the preliminary hearing of a person charged with double murder, without the presence of counsel despite the near certainty that he would be cross-examined about the current charges and the danger to defendant's personal safety that his testimony created. The prosecutor also improperly discussed possible concessions with defendant before his preliminary hearing outside the presence of counsel. The matter was remanded for an evidentiary hearing to determine whether defendant was prejudiced by bargaining with the state outside the presence of counsel.id: 19084
Updated 3/4/2024The defense forfeited the prosecutorial misconduct claim by failing to request an admonition.The prosecutor committed misconduct by repeatedly suggesting that sexual trafficking merely requires “encouraging prostitution”. However, defense counsel’s objections were sustained and counsel never requested an admonition to the jurors to disregard the statements. The argument was therefore forfeited.id: 28142
Updated 2/26/2024It was not misconduct for the prosecution to obtain the exclusion of certain evidence and then comment on the lack of evidence on the topic. The prosecution successfully moved to exclude evidence of a proposed defense experiment regarding the stability of the boat from which the victim’s body was allegedly thrown. The prosecution did not later commit misconduct by commenting on the lack of evidence regarding the stability of the boat.id: 27002
Updated 2/24/2024The prosecutor’s questions about defendant’s invocation of Miranda did not violate due process under Doyle and properly showed inconsistencies between his testimony and statements to police.The prosecutor did not commit error under Doyle v. Ohio (1976) 426 U.S. 610, by questioning defendant as to whether he invoked his right to remain silent during his police interview. Defendant testified that he was cooperative with police, and explained that he acted in self-defense. He never mentioned to them that the killing was accidental, and the prosecutor’s questions properly showed the inconsistencies between defendant’s trial testimony and his earlier statements to the police.id: 26715
Updated 2/4/2024The trial court did not err in denying defendant’s mistrial motion after the prosecutor referred to evidence that had been ruled inadmissible. The prosecutor failed to comply with the trial court’s pretrial ruling, and referred to hearsay statements that had been excluded. The trial court immediately instructed the jurors that the statements were stricken. The trial court did not thereafter err by denying defense counsel’s motion for mistrial as the evidence was not so powerful that it was incurable and the court instructed the jurors not to consider it. id: 27844
Updated 2/4/2024Codefendant’s counsel did not commit misconduct by asking questions about lying and vouching for officer credibility.Defendant argued counsel for the codefendant committed misconduct by asking him whether the police officers and other witnesses lied. The danger of prosecutorial vouching is minimal when done by a defense lawyer who has no special relationship with the police.id: 27337
Updated 2/4/2024The prosecutor did not err in asking defendant whether he thought the other witnesses were lying in response to defendant’s previous comments.Defendant argued the prosecutor committed misconduct by asking defendant whether he thought the other witnesses were lying. Such a question is improper when it has no evidentiary purpose but was proper here where the defendant had said the other witnesses were wrong in a way that could only result from bias or deception. id: 27340
Updated 2/4/2024The prosecutor did not commit prejudicial misconduct by misgendering the defendant at trial.At the time of the arrest for evading police, the defendant identified as a female, but at trial identified as a male. Defendant argued the prosecutor committed misconduct by misgendering the defendant by using the female pronoun when referring to him at trial. However, there was no indication in the record that the misgendering affected the verdict, and the court rejected the argument that prejudice should be presumed.id: 27599
Updated 2/4/2024The prosecutor did not commit prejudicial misconduct by misgendering the defendant at trial.At the time of the arrest for evading police, the defendant identified as a female, but at trial identified as a male. Defendant argued the prosecutor committed misconduct by misgendering the defendant by using the female pronoun when referring to him at trial. However, there was no indication in the record that the misgendering affected the verdict, and the court rejected the argument that prejudice should be presumed.id: 27601
Updated 2/3/2024There was no outrageous government conduct where the information provided by the investigator came from a period of time when he was not a member of the defense team.Defendant argued the prosecutor committed outrageous government conduct by soliciting a defense investigator to provide privileged information. However, the investigator was not a member of the defense team concerning the charged murder, and the statements he gave police were not protected under the attorney-client privileges.id: 27658
Updated 2/3/2024The prosecution did not commit improper vouching by asking whether he had introduced the witness to his own daughter. The prosecutor did not improperly vouch for his drug dealer witness by asking if he had introduced the witness to his daughter. id: 27740
Updated 2/3/2024Prosecution’s comment that suppressing defendant’s statements would operate a fraud upon the jury was not an improper attack on the court. The prosecutor did not attempt to improperly intimidate the court by arguing that suppressing defendant’s statements would “operate a fraud upon the jury.” This was an attack on the defense rather than the court. id: 27762
There was no prosecutorial misconduct where the witness blurted out a fact he had been warned against mentioning.At the penalty phase of defendant’s capital trial, the victim’s brother testified that another sister had committed suicide after the murder and so “I lost two sisters because of this clown.” The court had earlier ruled there was to be no mention of this suicide. Defendant argued the prosecutor committed misconduct by eliciting the testimony. However, the prosecutor had admonished the witness not to mention the fact and so there was no misconduct. Neither was the misconduct by the witness so inherently prejudicial as to threaten defendant’s right to a fair trial given the trial court’s admonition to ignore it. id: 26261
The prosecutor’s deliberate omission of allegations that would have led to LIO instructions was not improper.Defendant argued that it was fundamentally unfair for the prosecution to charge him with a Watson murder, and then deny him a manslaughter instruction as a lesser included offense by omitting allegations of drinking and driving from the information. However, the prosecutor’s deliberate omission of allegations was not improper.id: 26042
There was no prosecutorial misconduct where the witness blurted out a comment about a racist decal on defendant’s truck that the prosecutor knew nothing about. The trial court granted the defense pretrial motion to exclude reference to defendant’s white supremacist beliefs. A prosecution witness made a reference to a “German helmet” decal on defendant’s truck. The prosecutor had no previous knowledge of the German helmet or swastika sticker. There was no prosecutorial misconduct for intentionally eliciting inadmissible testimony where the prosecutor could not have anticipated the witness’s answer. The court addressed the issue even absent a defense objection at trial.id: 25488
The prosecutor’s reference to defendant’s post-Miranda silence was a fair response to defendant’s testimony that he cooperated fully with the police.Defendant testified that he was fully forthcoming with the police after his arrest. The prosecutor’s reference to defendant’s post-Miranda silence was a fair response to defendant’s testimony that he cooperated fully with the police. The prosecutor did not commit Doyle error by questioning defendant about his silence.id: 25270
Prosecuting defendant for murder was not legally irreconcilable given that the co-defendants pled guilty to voluntary manslaughter.Defendant, then 20, participated in a robbery with two friends where one senselessly shot and killed the victim. She argued that the prosecution, by informing the court that the co-defendants committed voluntary manslaughter while prosecuting defendant for murder, adopted irreconcilable versions of the law and facts that denied her due process. However, voluntary manslaughter is a lesser included offense of murder, and is not legally irreconcilable with it. The prosecution did not misstate any facts, and any inconsistencies were justified in light of the evidence.id: 25107
The prosecutor did not improperly vouch for the witness by reviewing the terms of a plea deal requiring the witness to be truthful.The prosecutor did not improperly vouch for the witness by making a record of the terms of a plea agreement requiring the witness to tell the truth. Nothing in his questioning of the witness or her answers suggested he had any special information outside the record on which to base his belief that the witness was telling the truth.id: 25108
There was no misconduct where the prosecutor did not directly elicit inadmissible testimony, but defendant provided it in a nonresponsive answer.Defendant argued the prosecutor erred by eliciting from him during cross-examination that he was aware of several witnesses who had pled the Fifth Amendment. While it’s misconduct to elicit inadmissible testimony, the damage came from defendant’s nonresponsive answers, and the court admonished the jurors to disregard the comment. Even if the questions were improper, defendant was not prejudiced.id: 24538
The prosecutor did not commit prejudicial misconduct by talking to the victim’s family members within earshot of a juror. Defendant argued the prosecutor committed misconduct by engaging in conversation with the victim’s family within earshot of a juror during the penalty phase retrial. However, while the prosecutor’s behavior was reckless, it was unintentional and there was no prejudice since no extraneous information was discussed. Neither did the prosecutor’s bad behavior constitute prejudicial misconduct where he made facial expressions, sighed or slammed books during defense arguments or witness testimony.id: 24519
The prosecutor did not commit prejudicial misconduct by repeatedly arguing with the court’s ruling as his bad behavior likely alienated the jurors. Defendant argued the prosecutor committed misconduct by rude and intemperate behavior as he argued with the court’s rulings in open court. The prosecutor’s conduct did not establish a due process violation but may have constituted a reprehensible method to persuade the jury. However, the error did not require reversal where it was likely the prosecutor alienated the jurors.id: 24346
An objection to the prosecutor’s allegedly improper argument was required despite defendant’s claim the misconduct was incremental. Defense counsel failed to object to several asserted instances of prosecutorial misconduct but defendant argued on appeal the issue of prosecutorial misconduct was not forfeited because of the incremental nature of the allegedly improper comments during argument. However, this was not a situation where an objection would have been futile or the problem became clear after one last improper comment. A timely objection here would have cured the harm.id: 24271
The prosecutor did not err by cross-examining the defense mental health expert as to whether defendant was a sadist even though sadism is not recognized in the DSM-IV. Defendant argued the prosecutor committed misconduct by cross-examining his mental health expert at the penalty phase on the issue of whether he was a sadist because sadism is not a recognized diagnosis in the DSM-IV manual of mental disorders. However, an inclination toward excessive cruelty or taking delight in the infliction of pain is a mental abnormality and the prosecutor did not err in asking the question.id: 23586
Prosecutor's question about witness's 20 year prison term as part of the plea bargain was not argumentative and did not amount to vouching.The prosecutor did not err by asking a witness about his plea agreement that provided for a 20 year term rather than the death penalty if he testified. The trial court acted within its discretion in allowing the question, and the question did not amount to improper vouching by the prosecutor.id: 23076
Any error in denying the motion to dismiss gun use allegations based on prosecutor’s inconsistent theories regarding the actual killer was harmless.Before the capital trial, defendant moved to dismiss the allegations that he personally used a firearm during the killing of Young because the same prosecutor had filed the same allegation against his severed codefendant and argued at the codefendant’s trial that he had fired the single fatal shot. The jury rejected the allegation in codefendant’s trial. Defendant argued prosecutorial misconduct in arguing inconsistent theories. Any error here was harmless where the ruling clearly had no impact on the guilt or penalty phase verdicts.id: 22806
The prosecutor did not prejudicially err by eliciting testimony that defendant was in Wasco.Defendant argued the prosecutor committed prejudicial misconduct by eliciting information (despite a court order prohibiting it) that defendant was in custody. However, the prosecutor’s reference to Wasco was not necessarily a reference to the state prison in Wasco. Moreover, any prejudice from an error was minimal where the jury already knew the capital defendant was in custody somewhere.id: 22769
Defendant could not claim a due process violation based upon the prosecutor’s inconsistent positions at his and codefendant’s trial since the subject was not raised in the trial court.Defendant argued the prosecutor violated his right to due process by arguing that he was the mastermind of the killing at his trial, but arguing that the codefendant was in charge at his trial. However, the asserted inconsistencies were not the subject of any proceeding in the trial court and the court refused to take judicial notice of the transcripts of codefendant’s trial. id: 22256
The trial court did not err by allowing the prosecutor to cross-examine defendant with “were they lying?” questions. The prosecutor did not err in cross-examining defendant at the penalty phase retrial with “were they lying” questions regarding two witnesses. The questions gave defendant an opportunity to address any gang related or personal reasons the witnesses might have had for testifying as they did. Assuming the questions were improperly argumentative, the prosecutor’s conduct did not rise to the level of reversible error.id: 22331
The prosecutor did not commit jury tampering where he patronized a bar where a juror worked as a cook and joked with the bartender that the tip should be split with the cook and she should vote for guilt.The prosecutor was having dinner and drinks in a bar where a juror in a capital case worked as a cook. At the end of the night, he tipped the bartender and said the tip should be split with the cook, suggesting that she return a guilty verdict. This was not improper jury tampering. The comments were intended, and understood to be a joke. id: 22063
Prosecutor’s false testimony at a peripheral hearing did not constitute outrageous government conduct requiring reversal of the convictions.Defendant’s child molest convictions were reversed in 2008 for Brady error as the prosecution had evidence (in possession of the SART team) showing defendant was innocent. Defendant later moved to dismiss the renewed charges for a variety of reasons. The trial court dismissed the charges for prosecutorial misconduct based on the false testimony the prosecutor gave during the post reversal evidentiary hearings. However, the court erred in dismissing the charges because the false testimony occurred in a peripheral hearing and was not shown to have prejudiced defendant’s right to a fair trial.id: 22406
“Were they lying?” questions were proper where defendant put her own veracity at issue. Defendant argued the prosecutor committed misconduct by asking defendant whether the witnesses who said they warned her against driving in her drunken state were lying. Defendant put her own veracity in issue and argued she should be believed and the others should not. The “were they lying” questions were a method of testing defendant’s veracity. Assuming they were improper, any error was harmless where the jurors were instructed to disregard any question for which no answer was given.id: 22248
While the expert’s answer violated the trial court’s ruling, the prosecutor’s question was proper and there was no misconduct.The trial court did not err by allowing expert testimony on the issue of intimate partner abuse. The testimony given did exceed the limits imposed by the trial court but the prosecutor did not commit misconduct by eliciting improper responses in violation of the court’s ruling where the prosecutor asked an appropriate question as to why victims of abuse don’t just leave, and the witness provided an answer that violated the trial court’s ruling.id: 22522
Questions about defendant’s altered appearance were relevant to identity and consciousness of guilt. The prosecutor did not commit misconduct by asking questions which suggested defendant deliberately changed his appearance to raise doubt about his identity as the perpetrator. The suggestion was relevant to the issues of defendant’s identity and consciousness of guilt.id: 21884
The prosecutor did not commit misconduct or violate defendant’s right of confrontation by refusing to grant immunity to a witness who then became unavailable after being charged with murder resulting in the use of preliminary hearing testimony being read at trial. Defendant argued the admission of the preliminary hearing testimony of a prosecution witness following the prosecutor’s failure to grant use immunity at trial constituted prosecutorial misconduct and violated defendant’s rights to confrontation and due process. There was no confrontation clause violation by refusing to grant immunity to the witness who testified at the preliminary hearing but was subsequently charged with murder. Defendant was given an adequate opportunity to cross-examine the witness at the earlier hearing even though cell phone records defendant argued were important were not discovered until later. Moreover, the refusal to grant the witness immunity was not improper where the record did not show the prosecutor acted for the improper purpose of intentionally rendering the witness unavailable at trial. id: 21952
The prosecutor did not commit Doyle error by asking why defendant did not call the police after finding the body. The prosecutor did not commit Doyle v. Ohio error by asking why, upon discovering the victim’s body, he did not call the police. The prosecutor did not cast suspicion upon defendant’s silence during the period after arrest and after exercising his Miranda rights. id: 21678
The prosecutor’s “was he lying” question was not improper where it was asked to assist the jury in determining whether defendant or the other witness was more credible.Defendant argued the prosecutor committed misconduct in cross-examining the defendant by asking whether another witness was lying. “Were they lying” questions are improper where they are argumentative or designed to elicit irrelevant or speculative responses, but they may be asked if, as here, the witness has personal knowledge that allows him to provide competent testimony that may legitimately assist the trier of fact in resolving credibility questions.id: 21598
The prosecutor did not commit “Doyle error” in questioning defendant about his failure to tell police of his alibi because he had provided various explanations to the police.Following his arrest, defendant waived his Miranda rights and gave two statements to the police. The prosecutor questioned defendant at trial about his failure to inform police of the alibi he described on direct examination. The prosecutor later emphasized the point during closing argument. However, the questioning and argument did not amount to improper “Doyle error” - improper comment on defendant’s silence - because defendant had not remained silent but had provided various explanations to the police.id: 21591
The trial court did not err by permitting the prosecutor to continue to question a witness who made clear she would not answer further questions or by allowing the prosecutor to urge the jurors (during closing argument) to draw a negative inference from her refusal to testify. Defendant’s girlfriend had been given immunity, but refused to answer questions about the incident at trial so the court struck all of her testimony. The court did not violate defendant’s confrontation clause rights by permitting the prosecutor to continue questioning her where the court struck the witness’s testimony and instructed the jurors not to consider the prosecutor’s questions as evidence. Moreover, the court did not err by allowing the prosecutor, during closing argument to urge the jury to draw a negative inference from the witness’s refusal to testify. While the court struck the witness’s testimony, it did not strike the fact that she took the stand and refused to testify. The comment on that was not improper.id: 21146
Having three former prosecutors testify that a certain witness was never considered a participant in the crime did not improperly bolster that witness’s testimony.Defendant argued the prosecutor improperly bolstered the testimony of an unreliable witness by calling three former prosecutors to testify the witness had not been promised immunity for his testimony. However, the former prosecutors testified the witness was never considered a participant in the crime, which was relevant to rebut the defense claim that the witness testified for fear of being prosecuted as an accessory. id: 21201
The prosecutor did not improperly hold until rebuttal evidence it should have presented earlier where the evidence was collateral rather than crucial to guilt.Defendant argued the trial court committed error under People v. Carter (1957) 48 Cal.2d 737, by allowing the prosecutor to withhold until rebuttal crucial evidence that should have been presented in the case-in-chief. However, the evidence here was not crucial or material, but rather was collateral evidence bearing on a witness’s credibility.id: 21200
he trial court did not err in allowing the prosecutor to call a witness knowing she intended to remain silent and refuse the oath.The trial court permitted the prosecutor to call Luna as a witness, knowing that she intended to remain silent and refuse the testimonial oath risking contempt. Because she had already pled guilty and served a prison term for her involvement in the offense, she had no privilege to refuse to testify under the Fifth Amendment. Defendant argued the court’s ruling violated Evidence Code section 600, subd.(b), because there was no admissible nonspeculative inference that could be drawn from her refusal of the oath. However, the trial court did not err in admitting the courtroom conduct for the limited purpose of providing support for the gang expert’s opinion that gang members threaten potential witnesses. There was no confrontation clause violation because the witness never testified. id: 20983
The prosecutor did not act improperly by making suggestions regarding the replacement of defense counsel that would bring the long delayed case to trial. The prosecutor did not commit misconduct by involving himself with the selection of defense counsel when it became clear that defense counsel’s busy schedule would require another lengthy delay. The case was already seven years old, and the prosecutor properly urged the court to explore avenues, including replacement of counsel, that would bring the long delayed case to trial.id: 21026
The prosecutor did not commit actionable misconduct by displaying the word “GUILTY” on his laptop computer.Defendant argued the prosecutor committed misconduct by displaying the word “GUILTY” on his laptop computer which was visible to the jurors as they entered the courtroom. However, the unfortunate, but inadvertent and casual, display of a single word characterizing the prosecutor’s position did not qualify as deceptive or reprehensible conduct. id: 20926
The prosecutor did not commit misconduct when cross-examining defendant by asking whether the police officer lied. The prosecutor did not commit misconduct by questioning the defendant about the differences between his version of the 1991 bicycle theft and the officer’s version. When asked whether the officer lied, the prosecutor was giving the defendant an opportunity to explain the divergent testimony. Moreover, the prosecutor’s other questions regarding defendant’s statement that were inconsistent with its evidence were proper impeachment and not argumentative or sarcastic.id: 20927
While certain facts were inconsistent at the penalty phase retrial, the prosecutor did not change theories, and the court did not err by preventing evidence on that basis.Defendant argued the trial court erred at the penalty phase retrial by preventing him from questioning the attorneys from the first trial about changes in the prosecutor’s theory of the case. However, the prosecutor did not change his theory of the case although some of the facts were inconsistent. Therefore, the court did not err in refusing to allow the requested evidence.id: 20860
The prosecutor did not commit prejudicial misconduct by failing to redact the transcript of defendant’s testimony at the first penalty phase trial that included the denial of a confession not introduced at the retrial.At the penalty phase retrial, the court admitted defendant’s testimony from the first trial which included the denial that he confessed the murder to inmate Thomas. The prosecutor had decided not to call Thomas as a witness at the retrial after learning that he had mental problems. Defendant argued the prosecutor engaged in misconduct by allowing Thomas’s testimony to be read even though he knew he would not be calling Thomas. However, the prosecutor made no reference to the confession in closing argument or elsewhere, and his failure to redact the improper portion of defendant’s prior testimony did not infect the trial with unfairness.id: 20859
The prosecutor did not improperly imply defendant could have had the DNA evidence retested.The prosecutor did not commit misconduct when examining a forensic witness by suggesting defendant could have had the DNA evidence retested. The prosecutor’s question did not invade the defense work product privilege, but rather, sought to clarify that, contrary to defense counsel’s implication, DNA samples were available for independent testing. id: 20803
The prosecutor did not vouch for herself when she asked the witness whether, as a representative of the state, she told the witness what to say in court.The prosecutor did not improperly vouch for her own credibility when she asked the witness whether “as a representative of the people of the State of California” she told the witness what to say in court.id: 20742
The prosecutor did not improperly argue inconsistent theories at the two trials where he emphasized in each trial that defendant was the killer and Brown assisted him. Defendant argued the prosecutor violated his due process rights by presenting inconsistencies at his trial and that of Steven Brown. However, the prosecutor at both trials argued defendant was the killer and that Brown assisted him. variations on the emphasis of other details did not amount to inconsistent and irreconcilable theories. id: 20400
The prosecutor did not commit misconduct in stating in front of the jury that he thought defense counsel wanted a 402 hearing on the subject he was about to question a witness.During the direct examination of a prosecution witness, the prosecutor stated in front of the jury that he believed defense counsel wanted a 402 hearing on an area he was about to address. Defense counsel argued the statement suggested to jurors that the prosecutor was trying to admit evidence that the defense was trying to keep out. However, it was unlikely the jury knew what a “402 hearing” was. Moreover, the statement was accurate as defense counsel did want a hearing. The prosecutor never repeated the statement and there was no misconduct.id: 20315
Prosecutor did not unlawfully interfere with defendant's right to present a defense by refusing to execute the plea agreement of a witness who invoked the Fifth Amendment until after the defendant's trial.Defendant was convicted of special circumstances murder for instigating the shooting death of his business partner. The prosecutor decided not to call the actual shooter as a witness. When the defense indicated it would call the shooter, they were told he would invoke his Fifth Amendment privilege. The prosecutor plainly stated he would not execute the plea agreement with the witness until the trial was over. The law provides that the witness's assertion of the privilege controls over the defendant's right to present a defense. Defendant argued the prosecutor committed misconduct by interfering with defendant's right to present a defense. However, the defense was permitted to introduce the witness's statements through other witnesses. There was no constitutional violation where the witness's unavailability did not deprive defendant of his right to present a defense or due process.id: 17998
The prosecutor did not commit misconduct by calling defendant's girlfriend to testify at the retrial since there was no evidence that she would refuse to testify as she had done earlier.Defendant's girlfriend refused to testify at the first trial, and was thereafter jailed for contempt. Defendant argued the prosecutor committed misconduct at the second trial by again calling the witness knowing she would not testify against the defendant. However, defense counsel knew the DA wanted to call the girlfriend, but did not object so the issue was forfeited. Moreover, there was no evidence suggesting the prosecutor knew the girlfriend would refuse to testify at the retrial.id: 19881
Prosecutor's "were they lying" question to defendant was not misconduct where it could help the jury resolve credibility issues.Defendant argued the prosecutor committed misconduct by asking defendant during cross-examination whether the other witnesses were lying. While "were they lying" questions should not be permitted where argumentative, they are permissible where a defendant has personal knowledge of a fact and the question assists the jury in resolving credibility questions.id: 19825
Defendant failed to show the late disclosure of a report impeaching the credibility of a witness against his codefendant prevented defendant from testifying.Defendant argued the Brady violation that led the court to grant his codefendant's motion for a new trial had a spillover effect as to him because the two codefendants had an understanding that
if one testified the other would also have to testify. Defendant was entitled to assert the Brady claim even though the evidence was not admissible against him, where they agreed on a both-or-neither approach to testifying. However, defendant showed only the possibility that he would have testified had the evidence been timely produced. Because the claim was based upon
speculation it failed to establish materiality for Brady purposes. Finally, the Brady violation was unintentional and therefore did not constitute reprehensible conduct for purposes of the Fourteenth Amendment.id: 19771
Trial court's admonition to the jury following the prosecutor's improper argument was sufficient to cure the prejudice where it addressed the specific improper remarks.The prosecutor committed misconduct at the minor's extended juvenile commitment hearing by implying the existence of facts not in evidence and interjecting his personal views into the argument. However, the trial court's subsequent admonition to the jury was sufficient to cure any prejudice where it was tailored to the prosecutor's specific improper remarks.id: 19582
The trial court did not err in denying the motion for mistrial at the penalty phase after the prosecutor reacted inappropriately to defendant's testimony.During the penalty phase, the prosecutor slammed something on the table after defendant testified that he had been molested by his mother. The trial court did not abuse its discretion in denying the motion for mistrial and instead advising the prosecutor not to let it happen again.id: 19397
There was no improper prosecutorial vouching from the DA investigator who was previously asked by the defense if he thought a witness was credible.Defendant argued the DA investigator's testimony vouching for the truthfulness of prosecution witnesses denied him a fair trial. Once the defense asked for the investigator's opinion of another witness's veracity, the prosecutor was entitled to ask why he thought the witness was truthful in an earlier statement.id: 19201
The prosecutor did not commit misconduct by asking defendant if he knew of reasons the other witnesses might lie.The prosecutor did not commit misconduct by cross-examining the defendant as to whether he knew of reasons why the other witnesses might lie. This was different than asking whether he believed the others were lying. The additional "were they lying?" questions were brief and precursors to questions as to whether he knew of reasons the witnesses might lie. The prosecutor's question about whether the safe was "lying"
was argumentative and improper, but was harmless.id: 19051
"Have you heard" questions regarding acts inconsistent with a witness's testimony are appropriate if the prosecutor has a good faith belief that the acts occurred.Two witnesses who testified on defendant's behalf at the penalty phase were asked whether they knew about defendant's burglaries and assault on a janitor. The prosecutor could reasonably have
asked those questions in good faith. "Have you heard" questions regarding acts or conduct inconsistent with the witness's testimony are appropriate so long as the prosecutor has a good
faith belief that the acts actually occurred.id: 19053
Prosecutor's question was not likely to elicit testimony about defendant's incarceration.Defendant argued the prosecutor committed misconduct by eliciting evidence of defendant's incarceration. However, the prosecutor was attempting to establish the nature of the relationship between the witness and defendant, and asked whether they "hung out." The witness's response that defendant "went back to prison right after" she met him was not a response that the prosecutor could necessarily have anticipated. Moreover, because the prosecutor's question at trial was unlike the question the police asked her the night she was apprehended, the prosecutor had no reason to believe the question at trial would cause the witness to mention defendant's imprisonment.id: 18682
The prosecutor did not err by eliciting testimony from a witness that defendant was in a "maniacin" mood on the night of the murder.Defendant argued the prosecutor committed misconduct by eliciting testimony that defendant was in a "maniacin" mood on the night of the murder. However, the testimony was not improper lay opinion evidence. The testimony defined the witness's use of the term which needed explanation because it lacked a commonly understood meaning. Her opinion was admissible because it was based on her perceptions and helped to better understand her testimony. Moreover, contrary to defendant's claim, the jury would not have understood the statement defining the term "maniacin" as referring to defendant's affiliation with a gang called the "Sacramaniacs."id: 18684
It was not misconduct for the prosecutor to elicit testimony regarding the witness's gang affiliation.Defendant argued the prosecutor committed misconduct by eliciting testimony concerning a witness's gang affiliation and tatoos. However, the evidence was relevant because the affiliation of the witness and defendant in the same gang explained why defendant would have made incriminating statements about his involvement in the murder to a witness.id: 18685
The prosecutor did not commit misconduct by cross-examining defendant about the evolution of his position after speaking with counsel.The prosecutor did not commit misconduct by suggesting in his cross-examination that defendant's exercise of his right to counsel was somehow improper and showed his consciousness of guilt. The prosecutor's questions sought to undermine defendant's trial testimony denying liability for the murder which differed from his inculpatory statements to police. It was not improper for the prosecutor to show that defendant had an opportunity to conform and falsify his trial testimony given his knowledge of the law. Similarly, the prosecutor did not err by asking whether defendant "remembered anything else" after speaking to his attorney.id: 18647
The prosecutor did not err by eliciting testimony from a witness about defendant's statement on how to "beat" a polygraph since the testimony showed consciousness of guilt.Defendant argued the prosecutor committed misconduct by eliciting testimony from a witness relating to defendant's statements about how to "beat" a polygraph. However, there was no misconduct as the testimony was properly admitted to show consciousness of guilt.id: 18628
The prosecutor did not commit misconduct by having a witness identify her husband from a photo in which he was wearing jail clothes.Defendant argued the prosecutor committed misconduct by having a witness identify her husband from a photograph of him wearing jail clothes. However, there was no misconduct since the appearance of a defense witness in jail or prison clothes does not adversely affect the presumption of innocence or carry with it the inference that defendant is disposed to commit crimes.id: 18509
The prosecutor did not improperly deny defendant access to a witness where he agreed to make her available but she informed him she would not speak to the defense.The prosecutor did not commit misconduct by denying defendant access to a prosecution witness. The prosecution provided access but the witness refused to speak to the defense. The court did not err by denying the motion to disclose the witness's address where there was a credible allegation of potential injury to the witness.id: 18436
There was no improper witness intimidation where the prosecutor's office had said they would come and get the witness if she didn't speak to them, or where the court later had the witness drug tested outside the jury's presence.Defendant argued the prosecutor committed misconduct by intimidating a defense witness. The statement from someone in the prosecutor's office that they were going to have to come out and get her if she refused to speak with them was not a threat of an arrest, even if the witness so interpreted it. The witness testified for the defense in both phases of trial. Moreover, where the witness gave the appearance at trial of being under the influence of an illegal substance, the court did not err in ordering her tested for drug use in another part of the courthouse outside the presence of the jury.id: 18437
The prosecutor did not commit misconduct by failing to procure a witness both sides wanted to call, only to inform the defense at trial he would not be calling the witness.Defendant argued the prosecutor acted in bad faith by waiting until after jury selection to say he would not call a witness that both sides had previously wanted to call, and who was difficult to locate. However, the defense was responsible for securing the presence of any witness it wanted to call at trial, regardless of whether the prosecution would also be using the witness. The defense should have been looking for the witness regardless of whether the prosecution planned to call him.id: 18402
Prosecutor did not commit misconduct in referring to a witness statement he previously stated was false since he did not actually know it was false.The prosecutor stated in chambers that a certain witness's statement to the police belied the truth and common sense. However, the prosecutor later elicited the statement while cross-examining a police officer. Defendant argued the prosecutor committed misconduct by making use of the statement it previously determined was false. However, the prosecutor's doubts about the truth of the statement was not based on facts of which the jury was unaware. The jury, which also heard from the defense, that the witness had recanted his statement, could make its own decision as to the witness's credibility.id: 18403
The prosecutor did not commit misconduct by referring to uncharged homicides where the question was based on a good faith belief in such evidence.The prosecutor did not commit misconduct by implying during the questioning of another witness that defendant had committed other uncharged homicides. The trial court did not find the prosecutor lacked a good faith belief for the question, but rather stated it was unsure whether there was a factual basis. The question about other killings was based on information contained in the transcript of the witness's interview with police.id: 18349
Witness's "no remorse" statement was made in response to the prosecutor's question, so there was no misconduct, and neither did the comment amount to Griffin error.A witness responded to the prosecutor's question by saying defendant had no remorse for the shooting. The prosecutor did not commit misconduct by deliberately eliciting inadmissible testimony. The "no remorse" remark was nonresponsive to the question. In any event, there was no reasonable likelihood the jury understood the response as referring to defendant's failure to testify.id: 18350
The prosecutor did not violate defendant's due process rights by failing to correct testimony from a witness that was not demonstrably false.Defendant argued the victim committed perjury when she responded that she had no idea what the perpetrator meant when he said "Give us what we want." Since $31,000 had been released to the witness two years before trial, defendant argued the witness and the prosecutor knew her testimony was false and she must have known the perpetrators were looking for the money. However, defendant's conclusion does not necessarily follow from the release of the money, and the witness's testimony was not demonstrably false. There was no evidence showing the intruders were aware of the $31,000. The prosecutor did not mislead the jury or violate defendant's due process right by failing to correct the witness's testimony.id: 18234
The prosecutor did not commit misconduct by presenting perjured testimony where he presented evidence showing the witness was lying and conceded his disbelief to the testimony in argument.Defendant did not show the prosecutor violated due process by using false testimony to secure a conviction. The prosecutor not only presented to the jury evidence the witness was lying, he also disclosed fully to the jury in closing argument his own disbelief of the witness's testimony.id: 17600
State double jeopardy clause bars retrial following intentional prosecutorial misconduct only where it was committed for the purpose of causing a mistrial, and it deprived defendant of a reasonable chance for an acquittal.After an earlier joint trial on first degree murder indictments ended in a mistrial as a result of the prosecutor's intentional misconduct, defendants were retried and convicted. The Court of Appeal reversed the convictions holding the retrial was barred by double jeopardy principles. However, retrial is barred under the federal double jeopardy clause only if the prosecutor committed the misconduct with the intent to provoke a mistrial. The prosecutor in the present case had no such intent. Neither was retrial barred under the state double jeopardy clause which requires not only a prosecutor's belief that an acquittal was likely at the time of the intentional misconduct, but also that a court determine from an objective prospective that the misconduct actually deprived defendant of the reasonable prospect of an acquittal.id: 17349
The prosecutor did not commit misconduct by cross-examining a witness about her fear of the defendant's girlfriend where the issue was dropped in compliance with the court's order.The prosecutor cross-examined a defense witness on the issue of whether and why she was afraid. The witness responded that it was because of defendant's girlfriend. Defendant argued the prosecutor created the false impression that he threatened the witness. The prosecutor argued the evidence was relevant to credibility, and that defendant's girlfriend who was sitting in the courtroom made the witness afraid. There was no misconduct where, in compliance with the court's order, the prosecutor did not press the issue further and did not suggest to the jury that defendant threatened the witness.id: 17314
The prosecutor did not improperly suggest a sexual assault preceded the murders.The information did not allege defendant sexually assaulted either murder victim. Defendant argued the prosecutor improperly suggested a sexual assault occurred, thereby raising an issue that was irrelevant and inflammatory. Initially, the testimony regarding the blood found near the "fly" of defendant's jeans did not imply a sexual assault. Next, the testimony regarding the stab wounds to the victim's "rectum area" clarified the location of the wound. When a defendant stabs a victim in the buttocks near the anus, he cannot complain if an officer refers to the location of the wound as the "rectum area." Finally, once defendant placed before the jury testimony that no sexual assaults occurred, the prosecutor was entitled to point out the medical examiner's findings did not rule out the possibility of a sexual assault.id: 17315
Trial court erred by imposing monetary sanctions against the prosecutor for the improper use of peremptory challenges leading to a mistrial.The trial court found the prosecutor improperly exercised peremptory challenges, leading to a mistrial and dismissal of the venire panel. The court imposed a $1,500 sanction against the prosecutor pursuant to Code of Civil Procedure section 177.5. The record supported the court's finding regarding the improper challenges. However, the statute only applies where a court order has been violated, and there was no such court order in the case. Since the statute does not apply, and the court lacked inherent power (outside of a contempt proceeding) to impose the fine, it was reversed.id: 17318
Prosecutor could properly argue the pathologist's theory to the jury despite his personal doubts regarding the theory.Defendant argued the prosecutor committed misconduct during closing argument by relying on the pathologist's theory that the clotted blood proved defendant was alive when the beating occurred. Defendant claimed this was misconduct since the prosecutor sent a memorandum to his superior expressing his belief that the pathologist's theory was "dubious." However, this belief was not based on the prosecutor's knowledge, but rather on the testimony of the defense expert. The prosecutor could properly argue the theory notwithstanding his private doubts.id: 16386
Prosecutor does not commit misconduct by not revealing doubts about a witness that were based purely on evidence presented at trial.Defendant argued the prosecutor erred by relying on the pathologist's testimony when he knew or should have known it was misleading. The defense expert's testimony apparently led the prosecutor to question whether the pathologist was correct when he testified that blood leaving a dead body does not clot. However, prosecutors are ordinarily not equipped to determine the validity of a scientific theory or its application to a particular case. The prosecutor is not obligated to reveal his doubts to the jury if they are based solely on the evidence presented at trial.id: 16387
Court did not err in denying motion to reopen guilt phase to show two witnesses were confined together and may have improperly tailored their testimony.Defendant argued the prosecution committed misconduct by permitting two witnesses to be housed in the same module of a protective custody unit once one of them recanted his testimony. He claimed the prosecution, as revealed by a sheriff's department memorandum, affirmatively authorized the two to associate with each other, giving them the opportunity to confer on and align testimony adverse to him. He further claimed the court erred by denying his motion to reopen the guilt phase to present evidence of the confinement arrangement. However, defendant produced no evidence showing the prosecution enabled the witnesses to confer and tailor their testimony, or that any testimony was altered as a result of his lodging in the South Bay jail.id: 15914
Propriety of prosecutor's use of inconsistent theories in separate trials of different defendants is better decided on a habeas petition.Defendant argued the prosecutor overstepped his constitutional limits by asserting, in separate trials of different defendants, factually inconsistent or contradictory theories of the criminal events. The court found the issue would be better decided in this case on a petition for writ of habeas corpus, rather than on direct appeal, since neither the inconsistencies nor any explanations the prosecutor may have been able to offer appeared in the appellate record.id: 15916
Prosecutor's obligation to warn witnesses to refrain from mentioning inadmissible matter does not apply when witnesses are called by the defense.Defendant argued the prosecutor committed misconduct in failing to inform the police officer, prior to his testimony, not to refer to defendant's invocation of the right to remain silent. However, this obligation on the part of the prosecutor did not apply since the officer was called as a defense witness.id: 15919
Prosecutor did not commit misconduct in molest case by cross-examining defense expert with a letter describing an additional act of inappropriate conduct.In a child molest case, the defense presented an expert witness who testified the defendant did not demonstrate the characteristics usually seen in a sex offender. On cross-examination it was proper for the prosecutor to challenge the expert's credibility by asking whether her opinion would change if she had information that defendant had committed other inappropriate acts, and by using a letter to counter the expert's false impression that there were no other alleged victims.id: 15008
Any error in questions regarding threats made to the witness while in prison was harmless where he testified defendant was not involved in the threats.Prosecution witness was receiving threats while in prison. Because of the threats, the prosecutor moved to have his term reduced and had the witness transferred to a county jail. Defendant argued it was improper to ask the witness questions about the threats he received because such questioning implied that defendant was threatening a testifying witness or was conspiring to threaten a witness. Any error from the evidence was harmless where the witness expressly testified that defendant was not connected with the threats in any way.id: 12438
As long as the prosecutor has a good-faith belief in the existence of a prior, it may seek to use the prior for purposes of impeachment.Appellant argued the prosecution committed misconduct by seeking to impeach him with a robbery conviction which it was later unable to prove at the court trial on the priors. However, the People produced appellant's rapsheet which indicated he had suffered two prior robbery convictions in 1981. As long as the prosecutor has a good-faith belief in the existence of a prior, it may seek to use the conviction for the purpose of impeachment.id: 12439
Failure to press the trial court for an admonition of the jury constituted a waiver of the issue of prosecutorial misconduct.A prosecutor's question regarding a fact not in evidence was improper. Defense counsel obtained the trial court's agreement that an admonition to the jury was called for, but then sat by as the trial court neglected to give the admonition. By failing to press the trial court for an admonition to the jury, defense counsel waived the issue of prosecutorial misconduct as effectively as though the issue had never been raised.id: 12444
No misconduct in argument that evidence supported a finding on a theory the court precluded the prosecutor from using at trial.The prosecutor's argument to the jury that appellant had injected or helped to inject victim with heroin did not violate the trial court's previous ruling that the prosecutor could not present the case to the jury on an administering theory.id: 12445
Prosector did not commit prejudicial error in asking defense expert whether he testified on the losing side of the Hillside Strangler case.In cross-examining the defense expert witness, the prosecutor asked whether the doctor had testified on the losing side of the Hillside Strangler case. The prosecutor's question did not constitute prejudicial error as any harm to the doctor's reputation from the question was slight. Moreover, an admonition from the court, if requested, would have cured any harm.id: 12446
Prosecutor committed misconduct in giving a perfunctory opening argument - immune from defense-reply and then giving a much longer rebuttal.The prosecutor committed misconduct in giving a perfunctory (three and one-half reporter transcript pages) opening argument designed to preclude effective defense reply, and then giving a rebuttal argument - immune from defense reply - ten times longer (thirty-five reporter transcript pages) than his opening argument.id: 12448
Prosecutor did not commit misconduct in claiming defense witness' testimony lacked corroboration where the prosecutor helped exclude corroborative testimony of an unavailable witness.Defendant argued the prosecutor committed misconduct in arguing a defense witness' testimony was not credible because it was not corroborated where the prosecutor thwarted the admission of corroborative preliminary hearing testimony of another witness the defense could not locate. However, it was the absence of physical - not testimonial- corroboration upon which the prosecutor relied. Also, defendant failed to object to the prosecutor's lack of corroboration argument, waiving the issue on appeal.id: 12452
Prosecutor did not err in questioning defendant about a statement written in a letter that was not part of a bona fide plea negotiation.While cross-examining the defendant the prosecutor referred to a letter defendant had written fellow gang members and asked: Isn't it true you told your home boys that if you were offered a good deal you would take it? Defendant argued the prosecutor's question constituted prejudicial misconduct because Evidence Code section 1153 imposes a bar on the use of offers to plead guilty. However, the statutory bar applies only to statements made in the context of bona fide plea negotiations. Defendant's statement, contained in a letter to a fellow gang member could not be construed as a bona fide plea negotiation. The prosecutor therefore did not commit misconduct in asking the question.id: 12453
Prosecutor did not improperly force the witness to claim a testimonial privilege in front of the jury.Defendant argued that the prosecutor with knowledge of defendant's wife's intention not to testify, committed misconduct by calling her as a witness at the guilt phase and forcing her to claim a testimonial privilege in front of the jury. The result, he claimed, was to impeach unfairly her credibility as a witness at the penalty phase. However, there was no evidence that the prosecutor improperly exploited the witness' refusal to testify and the record did not substantiate defendant's claim that her intention was known beforehand.id: 12454
Prosecutor's cross-examination of defendant did not amount to prejudicial harassment.During the prosecutor's cross-examination of defendant the trial court sustained defense objections to 28 questions but denied defense counsel's motion for a mistrial. The prosecutor's conduct did not amount to prejudicial harassment of defendant. If counsel believed a potential for prejudice existed after the objections were sustained she should have asked for a specific admonition. Moreover, the trial court was not required on its own motion to admonish the jury to disregard the improper questions.id: 12459
Prosecutor's reference to sodomy during the rape was not misconduct where there was some evidence, though not overwhelming, in the record.Defendant argued the prosecutor committed misconduct both by questioning a defense psychiatric expert regarding whether defendant spoke to him about sodomizing the victim during the course of the rape and also by raising the issue of the possible sodomy during closing argument. Defendant claimed he was not charged with sodomy and there was no evidence of sodomy in the record. However, the pathologist testified that spermatozoa had been found in the victim's anus. While the evidence did not overwhelmingly support the prosecutor's theory that sodomy occurred, there was a sufficient evidentiary basis in the record to justify the question to the doctor and the prosecutor's statements during closing argument.id: 12460
The prosecutor did not commit misconduct in commenting on appellant's failure to call certain witnesses.Appellant argued it was prejudicial misconduct for the prosecutor to comment on appellant's failure to call certain witnesses. However, such comment is permitted when a defendant fails to call an available witness whose testimony would naturally be expected to be favorable. If, as his attorney argued to the jury, appellant had snapped or gone nuts, his nephews and girlfriend should have been able to so testify. His failure to call them was properly subject to comment.id: 12462
There was no prosecutorial misconduct where there was no evidence of an agreement to dismiss charges against a witness even though charges were dropped days after the death verdict.The People's witness had charges pending against him at the time of his testimony. The prosecutor represented that no promises had been made to the witness regarding disposition of his pending charges. Within days after the jury returned its death verdict against the defendant, all pending charges against the witness were dismissed. Apart from the nonprosecution of the pending charges for almost two years, there was no evidence of an agreement that his charges would be dismissed in return for his testimony. There was no misconduct.id: 12463
When a defendant conceals evidence, the prosecutor can argue the inference that the evidence was unfavorable to defendant.Defendant admitted burying certain photographs but refused to say exactly where he buried them despite being found in contempt of court. The prosecutor was free to argue that if the photographs supported defendant's version of the facts, he would not continue to conceal them.id: 12464
There was no Doyle error where the prosecutor's question regarding defendant's post-Miranda silence was asked to correct the impression created by defense counsel that defendant was given no opportunity to explain a damaging statement.Officer testified on direct examination that defendant made a damaging spontaneous statement prior to being given Miranda warnings. Defense counsel then asked on cross-examination if when the remark was made the officer provided defendant with an opportunity to make a full and complete statement. The officer testified he did not. On re-direct the prosecution asked if <i>Miranda</i> warnings were subsequently given. The officer stated <i>Miranda</i> warnings were given and defendant declined to make a comment. Defendant argued the reference to his post-<i>Miranda</i> silence violated <i>Doyle v. Ohio</i>, (1976) 426 U.S. 610. However, there was no <i>Doyle</i> violation as the prosecutor's purpose on re-direct examination was to correct the impression created on cross-examination that defendant had not been afforded an opportunity to explain the apparently damaging statement.id: 11372
About Pat Ford
Pat Ford is a criminal defense lawyer in San Diego who works on appeals in some of the most difficult cases around the state. He has a great record for success and integrity. Pat has also published a criminal case law digest since 1984 that's used by judges and lawyers around the state. He also speaks and writes articles for criminal lawyers as well as consumers interested in the law. The consumer-related articles are intended to be informative but do not constitute legal advice.
Case of the Day
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Exclusion of 18-25 year-olds from the youthful offender provisions of section 3051 did not violate equal protection. Penal Code section 3051 establishes a parole eligibility hearing for juveniles convicted of special circumstance murder and sentenced to life without the possibility of parole. Excluding persons 18-25 from the youthful offender parole hearing provision did not violate equal protection principles.id: 27245