Other Misconduct in Argument to Jury
Category > Other Misconduct in Argument to Jury
Updated 7/12/2024Prosecutor misstated the law by arguing implied malice would be satisfied if the defendant was aware his dangerous conduct could “hurt” someone.Defendant was convicted of second degree murder under an implied malice theory. He admitted an intent to hurt, but denied an intent to kill the victim. During arguments, the prosecutor said a defendant has the required mental state if he is aware that his conduct is dangerous but doesn’t care “if someone is hurt or killed.” However, that was a misstatement of the law because implied malice requires a disregard for human life, and the prosecutor lowered the bar by suggesting it was enough that the defendant be aware his actions could hurt someone. The court added to the error by informing the jurors there was legal authority to support the argument. The error required reversal of the murder conviction.id: 28303
Updated 3/6/2024The prosecutor prejudicially erred by arguing an ambiguity in the GBI pattern instructions.In defining great bodily injury, CALCRIM Nos. 875 and 3160 describe an injury “that is greater than minor or moderate harm.” The prosecutor prejudicially misstated the law by arguing that harm no greater than minor harm alone was sufficient to establish great bodily injury. The error required reversal of the convictions.id: 26666
Updated 3/4/2024The prosecutor committed improper vouching by arguing the testifying officers would not put their careers on the line or risk a perjury prosecution by lying.The prosecutor impermissibly vouched for witness credibility by asserting in closing argument that the two testifying officers would not lie because each would put his “career on the line” or “at risk,” and would not subject himself to a possible perjury prosecution. The error required reversal of the conviction.id: 26850
Updated 2/26/2024The prosecutor committed misconduct by inviting the jurors to view the case through the eyes of the victims.The prosecutor committed misconduct by inviting the jurors to view the case through the eyes of the victims. However, the error was harmless where the comment was brief and the evidence of guilt was exceptionably strong.id: 26095
Updated 2/26/2024The prosecutor committed misconduct by referring to jurors’ voir dire comments to bolster the prosecution’s theories and inflame the jury’s passions during rebuttal arguments.The prosecutor committed misconduct when she referring to prospective jurors’ comments in her rebuttal arguments to bolster the prosecution’s factual theories and inflame the jury’s passions and biases. However, the misconduct was not prejudicial in light of the overwhelming evidence of guilt adduced at trial.id: 26862
Updated 2/7/2024The prosecutor committed misconduct by arguing that jurors could only find reasonable doubt if there was evidence that pointed to it. The prosecutor committed misconduct when arguing the concept of reasonable doubt by suggesting there needs to be some evidence on which to base a doubt. This precludes jurors from having a reasonable doubt based on the sufficiency of the evidence of the state’s case, and ignores common sense and life experience when viewing the evidence. The error was harmless in light of the overwhelming evidence of guilt.id: 27221
Updated 2/3/2024The prosecutor committed misconduct when arguing a fact that was known to be false.The prosecutor committed misconduct in misstating facts in closing arguments regarding the severity of the absent victim’s injuries. The prosecutor knew the victim did not go to the hospital after the incident, but argued “we don’t know if she went to the hospital.” The misconduct was harmless in light of the overwhelming evidence of guilt.id: 27399
Updated 1/31/2024The prosecutor committed misconduct by referring to juror voir dire comments during final argument.The prosecutor committed misconduct during her rebuttal argument by referring to comments made by certain jurors during voir dire as the comments were designed to bolster the prosecution’s factual theories and inflame the jurors’ passions and biases. The error was harmless given the strength of the evidence and the instruction emphasizing the attorney’s arguments are not evidence.id: 28028
Prosecutor erred by arguing that gang members should only be convicted of first degree murder. The prosecutor misstated the law by arguing that gang members deserve to be convicted of first, rather than second degree murder. However, the defense forfeited the issue on appeal by failing to object to the improper argument.id: 26213
The prosecutor erred in explaining the concept of “innocence” as used in the instruction on circumstantial evidence.Relying on CALCRIM 224, defense counsel argued if the circumstantial evidence could support two reasonable conclusions, that defendant drive with ordinary negligence or gross negligence, the jury must conclude he acted with ordinary negligence. The prosecutor erred by arguing in response that CALCRIM 224's reference to “innocence” applies only to actual innocence, not guilt of lesser included offenses.id: 27391
The prosecutor committed misconduct by referring to nonexistent conduct in her closing argument.The prosecutor committed misconduct during closing argument by making up facts on a point that defendant had specifically denied during his testimony, and there was no other evidence to support that fact in the record. The error did not require reversal of the conviction given the overwhelming evidence of guilt.id: 26063
The prosecutor committed improper vouching by arguing the correctional officers would not lie because that could hurt their careers and lead to perjury charges. The prosecutor committed the form of prejudicial misconduct known as “vouching” by arguing to the jury that the correctional officer witnesses would not lie because lying would destroy their careers and lead to their prosecution for perjury, even though no evidence of such consequences was presented. The issue was not forfeited due to the lack of a proper objection (counsel failed to ask for a curative admonition) given the importance of the error.id: 25849
The prosecution committed misconduct by referring to the group defendants associated with as “cockroaches,” as the comment amounted to guilt by association.During closing argument the prosecution referred to the defendants, and the others who participated in the kidnap murder as “cockroaches” who pose a serious threat to the community. This was misconduct because the prosecutor asked the jurors to punish a group of people with whom the defendants were associated, and was an improper attempt at guilt by association. It required reversal of the gang findings.id: 25563
The prosecutor committed misconduct by informing the jurors during closing argument that the presumption of innocence ends when the charges are read. The prosecutor committed misconduct by misstating the presumption of innocence and burden of proof during closing argument. She told the jurors that the presumption of innocence ends with the reading of the charges. This was wrong legally, intended to lighten the burden of proof, and constituted misconduct. The error required reversal where the prosecutor's improper remarks contradicted the court's instruction on reasonable doubt. id: 24709
The prosecutor misstated the law during argument by substituting the earlier standard of kidnap for rape, in the kidnap for robbery case.The evidence was insufficient to support the convictions of kidnapping for robbery where the defendants moved the victims to the back of the store. That movement would have been enough to support the kidnapping to commit rape. The prosecutor committed misconduct during argument by substituting the standard for kidnapping to commit rape.id: 25070
Alternate jurors committed misconduct by briefly discussing the case before deliberations but the misconduct was not prejudicial. Two alternate jurors committed misconduct by discussing the case before deliberations began, but the comments were brief and confined to the two alternates who did not participate in the deliberations.id: 24455
The prosecutor committed misconduct during closing argument by asking the jurors to view the crime through the eyes of the victim.The prosecutor committed misconduct during closing argument by asking the jurors to view the crime through the eyes of the victim. An appeal for sympathy is improper during the objective determination of guilt.id: 24272
The prosecutor erred by suggesting defense counsel knew his client was guilty.The prosecutor improperly impugned the integrity of defense counsel by suggesting during argument that counsel knew his client was guilty and presented a “sham defense.” However, the error was harmless given the strength of the prosecution’s case.id: 24270
The prosecutor committed misconduct by referring to imperfect self-defense as a “loophole” but the defense forfeited the issue by failing to object. Defendant argued the prosecutor committed misconduct when he commented during closing argument that imperfect self-defense was a “loophole” that would allow defendant to avoid responsibility for murder. The comment was improper but defendant forfeited the issue by failing to object. Following an objection, the trial court would have informed the jury that imperfect self-defense was not a loophole but rather a legitimate theory of voluntary manslaughter.id: 24090
The prosecutor committed prejudicial misconduct by arguing that “not guilty” means the defendant did not commit a crime. The prosecutor erred during the closing argument by saying “Well, what does not guilty mean? It means he did not commit a crime.” The comment misstated the law regarding reasonable doubt and required reversal in a close case that was a swearing contest with credibility problems on both sides. id: 24061
Prosecutor committed misconduct by arguing that the defense saw the jurors as gullible and wanted them to send him home so he could have a good laugh at their expense. he prosecutor committed misconduct by arguing that defendant hopes that one of you will be “gullible enough, naive enough and hoodwinked by the defense arguments so that he can go home and have a good laugh at your expense.” However, the error was harmless given the strength of the evidence and the admonishment given by the trial court.id: 23786
The prosecutor committed prejudicial misconduct by arguing the fact that defendant was a lesbian gave her a motive to molest the female victim. Defendant was charged with sexually abusing a girl she babysat. At trial, the prosecutor attempted to show defendant was a lesbian, and argued in closing argument (while disavowing the notion that all lesbians are child molesters) that defendant’s attraction to other women gave her a motive to sexually abuse the victim. While defendant’s sexual orientation wasn’t relevant to any issue, the trial court was largely successful in limiting the jury’s exposure to the evidence so the court did not err in denying the motion for mistrial made during the evidentiary phase of the trial. However, the prosecutor committed prejudicial misconduct by repeatedly attempting to refer to the evidence and by emphasizing the issue during closing argument. id: 23793
The prosecutor committed misconduct by suggesting in argument that jurors might not be able to placate friends and family if they reached a defense verdict. The prosecutor committed misconduct by suggesting in closing argument of defendant’s sexually violent predator trial that jurors might not be able to placate their family and friends if they reached a defense verdict. It was also arguably improper to imply that there were unreported sex crimes in defendant’s background. However, the misconduct did not require reversal where the evidence that defendant met the SVP criteria was strong and the jurors were expressly instructed to disregard the improper comments.id: 23794
The prosecutor committed misconduct by repeating in closing argument that the presumption of innocence is over.The prosecutor committed misconduct by twice commenting during closing argument that the “presumption of innocence is over.” However, trial counsel failed to object so the issue was forfeited on review. And trial counsel’s failure did not amount to the ineffective assistance of counsel given the weight of the evidence, which showed a proper objection would not likely have resulted in a better outcome. id: 23671
The prosecutor committed misconduct by using a diagram of the State of California to explain its burden of proof. The prosecutor’s use of a diagram of the state of California to explain proof beyond a reasonable doubt was misconduct as it trivialized the prosecution’s burden of proof. However, the error was harmless given the court’s instruction to disregard the diagram and the substantial evidence of guilt in the case.id: 22946
The prosecutor erred by noting in argument that the appellate courts have upheld convictions in similar circumstances. The prosecutor committed misconduct by informing the jurors during argument that the California Supreme Court and the Court of Appeal had upheld guilty verdicts in similar cases. The comments could be perceived as conveying instructions that conflicted with those given by the court. However, the error was harmless given the strength of the evidence. id: 22998
The prosecutor committed misconduct at the guilt phase by asking the jurors to note defendant’s failure to cry.The prosecutor committed misconduct during closing argument by asking the jury to note the defendant’s lack of crying as an indication of a lack of remorse. However, the error was harmless in light of the overwhelming evidence of guilt.id: 22835
The prosecutor erred in argument by saying the capital defendant could get parole if the jury didn’t find the special circumstance allegation to be true.The prosecutor improperly informed the jury during argument that the defendant could be released on parole if it did not find the special circumstance allegation true. However, the court later admonished the jury not to consider punishment when considering guilt, so the error was cured.id: 22048
The prosecutor committed misconduct by saying he produced no sanity phase experts because it would have wasted the jury’s time.The prosecutor committed misconduct by suggesting he did not call any experts at the sanity phase because it would have been a waste of the jury’s time. It was improper to imply that he had evidence of defendant’s sanity but did not want to bore the jury with it. However, the error was harmless where defendant produced no expert witness testimony showing he was insane at the time of the crimes.id: 22437
The prosecutor committed misconduct by arguing that the beyond a reason doubt standard required the jury to determine whether defendant’s innocence was reasonable. The prosecutor improperly attempted to lower the burden of proof by arguing that the beyond a reasonable doubt standard required the jury to determine whether defendant’s innocence was reasonable. However, the error did not require reversal where the jury was properly instructed on the beyond a reasonable doubt standard, the prosecutor informed the jurors that the law would come from the judge, and following the defense objection, the court gave a curative instruction admonishing the jurors to follow the instruction.id: 22260
The prosecutor committed Doyle error by referring in closing argument to defendant’s postarrest silence in discussions with a friend.The prosecutor committed misconduct (Doyle v. Ohio error) by referring in closing argument to defendant’s postarrest silence, not in response to police questioning, but rather in discussions with a friend. However, the error was harmless where the evidence of guilt was strong and the testimony that defendant failed to explain the cell phone calls did not contradict or damage his defense.id: 21953
The prosecutor’s blatant “Golden Rule” argument (“put yourself in the victim’s shoes”) along with the trial court’s failure to admonish the jury regarding the misconduct required reversal of the murder conviction.The prosecutor committed misconduct in arguing repeatedly that the jury should walk in the victim’s shoes and relive what the victim experienced. The error was aggravated by the prosecutor’s improper remarks about defendant’s appearance at trial and criticism of defense counsel for repeated objections to the improper argument. The prejudice was exacerbated by the trial court’s refusal to give an admonition requested by the defense. The prosecutor’s misconduct required reversal of the murder conviction. id: 21812
Prosecutor committed misconduct during closing argument by using a Power Point presentation showing an eight piece puzzle of the Statue of Liberty with pieces missing to explain the reasonable doubt standard.The prosecutor used a Power Point presentation during closing argument to illustrate the reasonable doubt standard. She showed an eight-piece puzzle of the Statue of Liberty, with two pieces missing but then argued the jurors could find beyond a reasonable doubt that the puzzle depicted the Statue of Liberty. Use of the easily recognized iconic image along with the suggestion of a quantitative measure of reasonable doubt gave the impression of a reduced standard of proof and constituted misconduct. However, the error was harmless where the court properly instructed on reasonable doubt and evidence of guilt was overwhelming.id: 21147
The prosecutor may have committed harmless error by arguing that reasonable doubt was a juror’s “gut instinct” as to whether defendant committed the crime.During closing argument, the prosecutor described reasonable doubt as the juror’s “gut instinct” as to whether defendant committed the crime. Assuming the statement misstated the law, the error was harmless where the trial court properly instructed on reasonable doubt.id: 20804
The prosecutor committed harmless error in closing argument by referring to a matter not in evidence.The prosecutor erred by referring in argument to the date the defense expert was hired because this fact was not in evidence. However, the error was harmless where the challenged statement offered little, in anything to the argument.id: 20316
The prosecutor committed misconduct by arguing defense counsel had an obligation to present evidence of police wrongdoing. The prosecutor committed misconduct by arguing during closing argument that defense counsel had an obligation to present
evidence showing the police engaged in wrongdoing. This comment shifted the burden to the defense and was untrue as police personnel records are confidential and not generally available to
defense counsel. The error was prejudicial as the reasonable doubt instruction would not necessarily negate the prosecution's assertion that defense counsel had an obligation to produce
evidence of police wrongdoing.id: 19386
The prosecutor committed misconduct by arguing that defense counsel "conjured up" witnesses.The prosecutor committed misconduct by arguing defense counsel
"conjured up" witnesses, because the statement effectively improperly accused counsel of suborning perjury.id: 19387
The prosecutor committed prejudicial misconduct by vouching for the credibility of the witness during rebuttal argument, and no objection or admonition would have cured the harm.The prosecutor committed prejudicial misconduct during her rebuttal argument by vouching for the integrity of her office and the witness' credibility by stating "I have a duty and I have taken an oath as a deputy district attorney not to prosecute a case if I have any doubt that the crime occurred. The defendant charged is the person who did it." No objection or
admonition would have cured the harm from the improper comment.id: 19205
Statement that defense has to create reasonable doubt is erroneous if meant to absolve the People of the burden to overcome reasonable doubt on all elements.During closing argument the prosecutor stated the defense has to create a reasonable doubt. The remark was proper if it meant the People had proved all of the elements of the crime and that the weakness of the defense response had left the record devoid of any basis for reasonable doubt. The remark was improper if it meant to absolve the prosecution from its prima facie obligation to overcome reasonable doubt on all elements. Any error was harmless in the absence of a defense objection.id: 12520
Prosecutor committed misconduct in arguing defense counsel called defendant so she could betray herself in courtThere was nothing improper about the prosecutor arguing that based on the defendant's demeanor and her manner of testifying that her denial of the molestations lacked credibility. However, he went beyond permissible argument when he in essence accused defense counsel of contributing to the ruination of defendant's life. His argument that defense counsel called defendant so she could betray herself in court could reasonably be interpreted as a subtle accusation that defense counsel knowingly presented perjured testimony. Such an accusation is clearly misconduct.id: 12485
Prosecutor's use of his personal belief to bolster the credibility of his witnesses was manifestly improper.The prosecutor informed the jury that he had gained incredible insight into human nature from his experience, and then assured them that a certain witness and her son were the kinds of people you can trust. This statement was manifestly improper because the prosecutor used his personal belief to bolster the credibility of the witnesses. Any error was harmless due to the defendant's failure to object to the challenged argument. The objection based on relevancy was insufficient to preserve the issue.id: 12517
Prosecutor erred in arguing that people like this will not inherit the kingdom of God.There is nothing wrong, per se, with prosecutor quoting from the Bible in final argument, or with arguing that such conduct took place even in Biblical times. However, the prosecutor in the instant case took things a step further and noted Paul's statement that People who behave like this will not inherit the kingdom of God. Such argument was inappropriate and basically turned God into an unsworn witness for the children's credibility.id: 12499
Prosecutor committed misconduct in telling the jury the portion of the tape recording they did not hear was inconsistent with defendant's story.Police had tape-recorded statements made by defendant shortly after his arrest where it appeared he fabricated an alibi. The People were permitted to introduce a portion of the tape. The prosector stated in closing argument that the defense had attempted to prevent them from planting the tape in its entirety. He later said the jury would have been anxious to hear the rest of the tape because it was inconsistent with defendant's own defense. The prosecutor's statements were clear misconduct as they contained innuendo and were based on the facts not in evidence. However, having failed to object to the remarks, defendant waived the point on appeal.id: 12488
Prosecutor committed misconduct in telling the jury to imagine the victims were their children.Prosecutor erred in arguing to the jury: Suppose instead of being Vickie Melander's kid, this happened to one of your children. The court sustained defendant's objection. However, the error was not prejudicial where the court did not admonish the jury to disregard the statement. Moreover, the comment was an isolated one and it was not repeated.id: 12487
Prosecutor's reference to the old Supreme Court was not harmful where defense counsel objected immediately.During penalty phase closing argument, the prosecutor discussed the felony murder special circumstance and specifically, that a felonious purpose independent of murder must exist. He then made a reference to the old Supreme Court. The trial court sustained defense counsel's objection. Had counsel not objected the reference might have turned into a harmful statement, but he did, and it did not.id: 12513
Prosecutor erred in telling the jury of the prosecutor's preliminary determination of the witness's credibility as a condition of the plea agreement.At the outset of a prosecution witness's testimony the prosecutor read to the jury the text of the witness's plea agreement. Defendant argued the prosecutor's preliminary determination of the witness's credibility as a condition of the plea agreement was proper because it implied the existence of information known to the prosecutor but undisclosed to the jury, that proved the witness was telling the truth. The reference to the credibility determination should have been excised as it had little or no relevancy to the witness's credibility at trial, other than to suggest the prosecutor found the witness credible. The error was harmless as the prosecutor argued for the witness's credibility based on the evidence adduced at trial, not on the strength of extrajudicial information obliquely referred to in the plea agreement.id: 12500
Prosecutor committed misconduct in referring in argument to defendant's unemployment status when there was no evidence of this fact on the record.The prosecutor committed misconduct in arguing defendant's unemployment status when there was no evidence of this fact on the record. The misconduct was not absolved, as the People suggested, where the prosecutor inadvertently forgot to ask the question as to defendant's unemployment at trial. The error was not prejudicial where an admonition could have cured the harm and none was requested.id: 12486
Prosecutor's remarks during final argument impugning the integrity of defense counsel constituted prejudicial misconduct.The prosecutor directed certain comments toward defense counsel during closing argument: My people are victims. His people are rapists, murderers, and child molesters. He has to tell them what to say. He has to help them plan a defense. He does not want you to hear the truth. The argument inferred that all of counsel's clients are necessarily guilty of heinous crimes. Additionally, he impliedly denigrated the presumption of innocence and the burden of proof beyond a reasonable doubt. Finally, he implied that defense counsel suborned perjury. The argument was improper and required reversal.id: 12514
The prosecutor erred in asking the jurors to place themselves in the position of an innocent victim.The prosecutor asked the jurors to place themselves in the position of an innocent victim who is assaulted with a knife and sustains serious injuries. The remarks constituted an improper appeal to the passion and prejudice of the jury, and the objection on that basis should have been sustained. However, the error was harmless as the jury acquitted defendant of the assault offenses.id: 12522
Prosecutor erred in arguing lawyers have a duty to lie but did not err in reading quotes that suggested attorneys are schooled in the art of persuasion.The prosecutor improperly commented in closing argument that it was the lawyer's duty to lie. While the comment was improper the court corrected any misconception by admonishing the jury that a lawyer violates ethical standards if he or she tells a lie in court. The prosecutor's other quotes that lawyers change black to white, represent bad people, and interpret the truth loosely, were not improper as they simply pointed out that lawyers are schooled in the art of persuasion. Moreover, the prosecutor did not err in requesting that the jury not treat defendant differently because he retained a prominent lawyer as the remarks did not suggest defendant should be penalized for hiring the attorney.id: 12498
Prosecutor trivialized reasonable doubt standard by suggesting it is used in daily life to decide such questions as whether to change lanes or marry.During closing argument the prosecutor erred in arguing the reasonable doubt standard is used in daily life to decide such questions as to whether to change lanes while driving or whether to get married. The argument trivialized the reasonable doubt standard. However, defendant failed to object and the error was harmless.id: 12502
Prosecutor prejudicially erred in telling the jury why a defense witness did not testify and what the testimony would have been.The prosecutor committed misconduct when he told the jury why a defense witness did not testify and what the testimony of that witness would have been. The improper argument violated defendant's Sixth amendment rights to confrontation and cross-examination.id: 12501
Prosecutor erred in commenting on defense expert's failure to testify that cocaine use could have caused defendant to commit the crimes.The prosecutor committed misconduct in commenting on the failure of the defense expert to testify that defendant's cocaine use could have caused him to commit the crimes. Penal Code section 29 prohibits an expert from giving an opinion about the ultimate fact whether a defendant had the mental state needed for a conviction. However the error was harmless in light of the strength of the evidence of premeditation, deliberation, and intent to kill.id: 15924
The prosecutor committed reversible error during closing argument by informing the jury what an uncalled witness would have said.Defendant was charged with drug possession. The defense argued the arresting officer lacked credibility. Defense counsel, in closing argument, suggested the prosecution did not call the officer's partner as a witness because he would have contradicted the officer's testimony. The prosecutor erred in closing argument by telling the jury what the testimony of the uncalled officer would have been - that his testimony was corroborative of the testifying officer and thus cumulative. The argument denied defendant his Sixth Amendment right to confront and cross-examine the uncalled prosecution witness. Reversal was required where it was impossible to determine whether the prosecutor's improper argument contributed to the jury's conclusion that the testifying officer was credible.id: 15927
Prosecutor's argument inviting the jurors to reflect on all that the victim had lost through her death, was an improper appeal for sympathy.During closing argument at the guilt phase of defendant's capital trial, he asked the jurors to think about all the living and breathing defendant had taken from her. The argument was an appeal for sympathy and was improper at the guilt phase. However, the error was harmless as the statement was brief, mild and not repeated.id: 16552
The prosecutor's misconduct in vouching for the court-appointed experts at the competency trial was harmless where the expert's credibility was never in issue.The prosecutor improperly vouched for the credibility of the court-appointed experts at the competency trial by referring to his prior use of the experts when he was a defense lawyer, and by openly expressing his admiration and respect for the experts. However, the misconduct was harmless where the credibility and impartiality of the experts was never in issue, and defense counsel likewise stated the experts were well respected.id: 18171
Prosecutorial misconduct in arguing defendant had unlimited money to prepare a defense could have been cured by an admonition.Defendant argued the prosecutor committed misconduct by arguing that he had "Virtually unlimited money" to prepare a defense. Although the court sustained defense counsel's objection, defendant failed to seek a curative admonition from the court. The prosecutor's reference to money was fragmentary and ambiguous, and an admonition could have cured any harm.id: 18745
A prosecutor commits misconduct by arguing that defense counsel does not believe in his client's case.The prosecutor committed misconduct by arguing that a discrepancy
between opening statement and defendant's testimony showed that counsel did not believe his client. However, any harm was cured after the court sustained defense counsel's objection and
admonished the jury.id: 19052
Any error by the prosecutor in using profanity or name calling during closing argument was harmless.Defendant argued the prosecutor committed misconduct during the penalty phase closing argument by referring to defendant as "a rotten, nasty S.O.B., and M.F." and a "punk". While name calling is not necessarily misconduct, the court does not condone the use of profanity in arguments. Any error was harmless where the references were brief, and it is not likely the jury's decision was rooted in passion rather than evidence.id: 18406
Defense counsel's failure to object to the prosecutor's misstatements regarding murder and manslaughter did not constitute ineffective assistance since the victim's calling
defendant a "faggot" was not sufficiently provocative to require a manslaughter instruction.The prosecutor committed misconduct by misstating the law on
murder and voluntary manslaughter. The misstatements included a claim that voluntary manslaughter was a "legal fiction" and sudden quarrel or heat of passion could form the basis for
second degree murder. Since defense counsel did not object to the improper comments, defendant forfeited any claim of prosecutorial misconduct. Defense counsel was not ineffective
in failing to object because the evidence did not support a manslaughter instruction as the victim's calling defendant a "jota" or "faggot" was insufficient to cause an average person to lose reason and judgment.id: 18987
The prosecutor committed prejudicial misconduct in arguing guilt by association against the Catholic priest defendant, and asking the jurors to place themselves in the victim's position.Defendant was a Catholic priest convicted of molesting children.
However, the prosecutor committed misconduct by referring in argument to the "horrendous crimes" committed by priests which was an obvious reference to the scandal in the Catholic
Church over pedophile priests and an argument of guilt by association. The prosecutor further erred by asking the jurors to place themselves in the position of the victims who were called to the stand and asked detailed questions about the crime scene. Finally, the prosecutor improperly expressed a belief in the defendant's guilt. The prosecutor's improper argument constituted prejudicial misconduct and defense counsel rendered ineffective assistance by failing to object.id: 19004
The prosecutor committed misconduct by informing the SVP jury about the consequences of a true finding, and a curative instruction would only have highlighted the issue. The trial court granted the defense request to prohibit the prosecutor from telling the jury at defendant's Sexually Violent Predator trial of the consequences of a true finding. The
prosecutor committed misconduct in his rebuttal argument by referring to the consequences, and a curative instruction would not have helped given the timing of the arguments and the fact that an instruction may have further highlighted the issue of consequences. The error required reversal of the judgment where the prosecutor's evidence was not overwhelming and defendant
presented strong evidence on his own behalf.id: 19047
Updated 3/6/2024The prosecutor did not err in stating the defense was “orchestrated” where the comment suggested the defense carefully selected its witnesses, not that any of the witnesses lied.The prosecutor did not commit misconduct during closing argument by commenting that the defense was “orchestrated” where the comment suggested it was presented with a deliberate selection of witnesses. Likewise, the comment that the defense experts interviewed defendant together “to get their ducks all in a row” suggested the experts coordinated their efforts, not that they lied.id: 26527
Updated 3/5/2024The prosecutor did not commit misconduct by claiming during opening statement that defendant admitted taking a gun to Mexico.Defendant argued the prosecutor committed misconduct by commenting during her opening statement that defendant admitted taking a nine-millimeter handgun to Mexico. The evidence at trial would show defendant admitting taking a different gun, a rifle, to Mexico. However, defendant’s statement to the detective in this regard was somewhat confusing so there may have been some support in the record for the prosecutor’s statement. Any error was harmless where defense counsel clarified during cross-examination that defendant had admitted to taking the rifle to Mexico.id: 26839
Updated 2/26/2024The prosecutor did to prejudicially err by stating during argument that a witness testified truthfully.Defendant argued the prosecutor improperly vouched for a witness by saying that he was “honest” and “testified truthfully.” However, the evidence supported the witness’s testimony and the jury was instructed that witness credibility was for it to decide.id: 26233
Updated 2/26/2024Prosecutor did not commit misconduct by suggesting the jurors would be giving defendant a break if they reduced murder to voluntary manslaughter.Defendant argued the prosecutor committed misconduct by equating voluntary manslaughter with justified or excused killing. However, by arguing defendant’s behavior was not “justified” or “excused,” she may have implied the jury would be giving him a break if they reduced murder to manslaughter, but that is different than implying they would be letting him go without punishment. id: 26420
Updated 2/26/2024It was unlikely that the jurors misunderstood the law following the prosecutors’s comment they had to convict if there was one reasonable interpretation of the evidence favoring conviction.The prosecutor may have erred during closing argument when she suggested that the jurors should reject if one interpretation was unreasonable, and that they “must convict” if there was one reasonable interpretation favored guilt. However, when viewed in context of the entire argument and instructions given, it wasn’t reasonably likely that the jurors misunderstood or misapplied the comments.id: 26443
Updated 2/24/2024The prosecutor did not commit misconduct by using the yellow light analogy to explain how a premeditated and deliberate decision to kill can be made quickly.In explaining premeditation during closing argument, the prosecutor used the example of a driver approaching a yellow light and then deciding to go through it. The argument was not an improper attempt to equate a decision to kill with a traffic decision. Rather, it showed how a premeditated and deliberate decision to kill can be made quickly.id: 26714
Updated 2/22/2024The prosecutor did not commit prejudicial misconduct by arguing the firing of a gun a second time would establish premeditation.Defendant argued the prosecutor committed misconduct in explaining premeditation by equating it with a person’s decision to fire a gun twice. There are cases where the number of shots fired can indicate premeditation, but not always. Any error was harmless where the statement was not entirely wrong, the reference was brief, and the jury was properly instructed on premeditation.id: 27056
The prosecution’s comment that defendant was “no longer presumed innocent” simply suggested the evidence presented had overcome the presumption.Defendant argued the prosecutor committed misconduct in closing argument by telling the jury he was “no longer presumed innocent.” Taken in context, the argument suggested that the evidence had overcome the presumption of innocence, not that the presumption no longer applied as a procedural matter. Neither did the prosecutor shift the burden of proof by arguing that the defense failed to show why the victims would have lied, and assuming that comment was improper, it was harmless.id: 26191
The prosecutor did not prejudicially err by arguing that reasonableness for reasonable doubt was like tossing a coin that landed on its edge, although prosecutors need to be careful to avoid the suggestion that the jury can decide a case by flipping a coin.The prosecutor argued during closing argument that reasonableness for purposes of reasonable doubt could be thought of like tossing a coin that landed not on either side, but rather on its edge. Prosecutors should avoid drawing comparisons that risk trivializing or confusing the reasonable doubt standard. However, it was unlikely the jurors misunderstood the argument to suggest they could decide the case by flipping a coin.id: 26203
The prosecutor erred by suggesting during argument that he had other evidence he did not present. The prosecutor erred by suggesting during closing argument that he had other witnesses he did not call. However, the error was harmless as the statement was isolated, the argument otherwise focused on admitted evidence, and the evidence of guilt was strong. The comment also did not constitute improper vouching for a witness.id: 26212
The prosecutor did not improperly suggest during closing argument that defendant was given leniency in the charging process.The prosecutor commented during closing argument that defendant’s true culpability was even greater than for the offense charged. The remark did not improperly imply that the charges were reduced or leniency was extended.id: 26137
Prosecutor’s comment that people who don’t look retarded, aren’t retarded may have been improper but was harmless.After the guilt verdict in defendant’s capital case, the court held a hearing to determine whether defendant was intellectually disabled. During closing argument the prosecutor said, “If a person doesn’t look or act retarded it’s because they’re not retarded. It doesn’t take any professional to let you know that.” The comment may have been an improper statement based on lay stereotypes, but the comment was brief and harmless in light of the expert’s findings.id: 25795
There was no improper vouching where the prosecutor referred to the victim’s mother as “brave” and said the deputy knew the individuals involved.There was no improper vouching by the prosecutor by referring to the victim’s mother as brave since that was not an assurance of her veracity, and by stating the deputy knew the individuals involved because that was supported by the record.id: 25395
The prosecutor’s misstatement regarding voluntary manslaughter was harmless where the jury was properly instructed, and found the killing was deliberate and premeditated. The prosecutor misstated the law by arguing that in order to reduce the killing from murder to voluntary manslaughter, the jury had to find a reasonable person would have fired a loaded gun at the victim’s head. However, the misstatement was harmless because it was brief, the jury was properly instructed and found defendant premeditated and deliberated the murder of his wife.id: 25085
The prosecutor did not sandbag the defense by making a brief closing argument saving the stronger claims for rebuttal.Defendant argued the prosecutor “sandbagged” defense counsel by giving a perfunctory closing argument followed by a rebuttal argument that addressed new areas. Assuming the prosecutor’s rebuttal is restricted to the matters addressed in defense counsel’s argument, the prosecutor did nothing more here than marshal validly admitted evidence to counter defense counsel’s argument. Assuming there was error, the failure to allow surrebuttal by the defense was harmless.id: 24997
The prosecutor did not err by arguing that once guilt was established beyond a reasonable doubt there is no more presumption of innocence. The prosecutor did not commit misconduct by improperly reversing the presumption of innocence when she stated during closing argument that once the evidence of defendant’s guilt was proved beyond a reasonable doubt there is no more presumption of innocence. The statement suggested the presumption of innocence would be gone only after the jury began deliberations and considered the evidence of guilt. The court emphasized that it did not condone any statement even remotely implying the presumption of innocence is lost before the jury returns a verdict.id: 24765
The prosecutor did not commit misconduct by briefly stating the prosecution met its burden of proof if the jurors’ belief in guilt was nonimaginary and based on the evidence. The prosecutor did not commit misconduct by stating during closing argument that the beyond a reasonable doubt standard was met if the jurors’ belief in guilt was nonimaginary and based on the evidence. The comment was brief, responded to an overstatement by defense counsel, and the jury was otherwise properly instructed on the burden of proof.id: 24694
The prosecutor did not commit misconduct by commenting on defendant’s hairstyle change during closing argument.The prosecutor did not commit misconduct during penalty phase closing argument by noting that defendant changed his appearance (by growing out his hair) prior to trial because the action related to identity and consciousness of guilt.id: 24456
The prosecutor did not commit misconduct by arguing for the first time in rebuttal that the victim was gay, which related to consent.The prosecutor did not commit misconduct by arguing for the first time in rebuttal the relevance of evidence the victim was gay. The comment was made as a fair response to defense counsel’s arguments concerning consent.id: 24612
The prosecutor did not improperly dilute the reasonable doubt standard in closing argument by suggesting it only applied if the jurors had a doubt about the truth of the charge. Defendant argued the prosecutor committed misconduct by arguing the reasonable doubt standard need only be considered if the jurors had a doubt about the truth of the charge after tentatively making a determination of guilt. However, the record does not show the jurors used the reasonable doubt standard in this way. Moreover, the jury was presumed to have followed the court’s instruction on reasonable doubt, and assuming there was misconduct, there was no prejudice in light of the strength of the evidence of guilt. id: 24613
The prosecutor did not commit misconduct by arguing that the crime occurred in what looked like a shooting gallery.The prosecutor commented during closing argument that the crime occurred in what looked like a “shooting gallery.” The comment did not amount to arguing facts not in evidence and did not constitute an improper vouching for the strength of the prosecution’s case.id: 24548
The prosecutor did not improperly vouch for her case against defendant by referring to plea deals she made to the other defendants.The prosecutor did not improperly vouch by referring to plea deals she made to two of the defendants where the argument referred to evidence and inferences drawn from that evidence rather than her personal knowledge or beliefs. id: 24269
The prosecutor’s comment about cruelty and unnecessary violence was tied to the evidence.Defendant argued that the prosecutor committed misconduct by arguing that the underlying theme to all of the charged crimes was cruel and unnecessary violence. However, most of the challenged statements fell within the permissible bounds of argument as they were tied to specific testimony or photographs. The prosecutor did not invite the jurors to place themselves in the victim’s shoes when she speculated the victim might have thought the robbery was over when defendant turned to leave.id: 24161
The prosecutor did not prejudicially err by arguing the shooting was not an accident unless it was unpreventable.In light of the other instructions given, the prosecutor did not commit prejudicial misconduct by telling the jury during argument that the shooting was not an accident unless it was unpreventable.id: 24108
Evidence supported the prosecutor’s statements to the jury that defendant intimidated key witnesses. Defendant argued the prosecutor committed misconduct by informing the jury during opening statements at the guilt phase that the case took a long time to get to trial because defendant had intimidated the prosecution’s witnesses and they were afraid to testify. However, evidence supported the prosecutor’s comments. Moreover, defendant’s threatening comments to one of the witnesses in the jail also supported the consciousness of guilt instruction the court later provided.id: 23857
Any error in arguing the false inference at the penalty phase was harmless in light of the extensive aggravating evidence.Defendant presented evidence in mitigation during the penalty phase that he was abused by his grandmother as a child. The prosecutor emphasized during closing argument that no other witness testified in support of that claim. Defendant claimed the argument was misconduct because the prosecutor was in possession of interview reports from his sisters who agreed the grandmother was abusive. However, any error in arguing this false inference was harmless where there was testimony from another witness suggesting defendant’s grandmother was evil, and the evidence in aggravation was extensive. id: 23858
The prosecutor may have erred by informing the jury defendant liked certain books, including books with various inflammatory titles, where defendant had not read those books but forfeited the issue by responding rather than requesting a curative instruction. During penalty phase closing argument, the prosecutor sought to rebut the claim that defendant had a low IQ by illustrating the kinds of books he read. There was evidence that he read books by certain authors including Stephen King, John Grisham and Dean Koonz. The prosecutor then showed the jury certain books written by those authors that might impact the jurors even though there was no evidence defendant had read those books. The prosecutor erred by showing the books with the inflammatory titles, but he told the jurors these where not necessarily the books the defendant had read. However, defendant forfeited the claim by electing to respond rather than requesting a curative instruction.id: 23481
The prosecutor did not improperly vouch for the child molest victims by calling them tenacious for sticking by their stories over time.The prosecutor did not improperly vouch for her victim witness by arguing that the were tenacious in sticking with their stories over time and in the face of hostility because the comments were based on the evidence. The claim that defendant and his relatives were liars are also based on the evidence and not improper.id: 23192
The prosecutor did not improperly vouch for his case by emphasizing defendant’s attempt to minimize his responsibility and portray the prosecutor as the bad guy. Defendant argued the prosecutor erred by commenting that defense counsel was trying to divert attention away from the defendant, and portray him (the prosecutor) as “the bad guy.” However, the prosecutor was not vouching for the evidence or claiming that he was the “good guy.” He was properly criticizing the defendant’s minimization of his participation in the crimes.id: 23279
The prosecutor did not misstate the burden of proof by suggesting it could be satisfied with a few pieces of evidence even if one was incorrect.When discussing reasonable doubt in closing argument, the prosecutor suggested there could be no reasonable doubt about which state you were discussing if you identified several California cities, even if San Diego was incorrectly mentioned as being in the northern part of the state. The example suggested the state’s burden could be met with only a few pieces of evidence, even if there was an error. This did not misstate the prosecutor’s burden and did not constitute misconduct.id: 23120
The prosecutor did not improperly vouch for the police officers during final argument by responding to defense counsel’s claim that the officers lied.During closing argument, defense counsel suggested the police officers lied when testifying. The prosecutor’s responding comments during the final argument, suggesting the officers had no reason to lie was not improper vouching.id: 23039
The prosecutor did not err by arguing that the defense expert was biased because of her compensation.The prosecutor did not improperly impugn the character of defense counsel or the defense medical expert by suggesting the doctor was biased because of her compensation.id: 23040
Any improper biblical references by the prosecutor during closing argument were harmless where they were a brief portion of a long argument.Defendant argued the prosecutor committed misconduct at the penalty phase by using Old Testament quotations in his closing argument. However, the claim was forfeited for lack of an objection. And any error was harmless where the improper references occupied less than two of the 100 pages of reporter’s transcript.id: 22847
Prosecutor’s improper comment that the presumption of innocence vanished before jury deliberations was cured by the standard reasonable doubt instruction.Defendant argued the prosecutor committed misconduct by arguing that the presumption of innocence vanished once it presented enough evidence. While the argument, and the court’s comments that followed, failed to specify that the presumption of innocence continued until jury deliberations, the concept was conveyed to the jury by CALJIC No. 2.90. Moreover, the evidence of defendant’s guilt, which included his confession was overwhelming. id: 22009
The prosecutor did not commit misconduct by arguing defense counsel paid a lot of money to defense experts or by saying the experts were willing, for a price, to conclude the killing was suicide.The prosecutor did not commit misconduct by arguing that defense counsel paid experts a lot of money in an attempt to get the defendant acquitted. The prosecutor did not accuse defense counsel of coaching witnesses or believing that his client was guilty. Neither did the prosecutor err by commenting that the defense experts were paid $419,000. Commenting on the compensation for defense experts is permissible.id: 22172
Prosecutor’s comments that the witnesses were good people trying to do the right thing did not amount to improper vouching.The prosecutor commented in closing argument that a witness was a nice young man who did something important. He was “the kind of young man who was willing to put himself out to do what he felt was right.” The prosecutor made similar comments about two police officer witnesses. The comments were not based on facts outside the record and did not constitute improper vouching. id: 21549
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
The prosecutor’s mention of defendant’s prior failure to register and absconding from parole did not suggest propensity but rather attacked his credibility.Defendant was convicted of failing to register as a sex offender as required by Penal Code section 290, subd. (f)(1) within five days of moving out of Rocklin. He argued the prosecutor committed misconduct by referred in argument to his prior acts of absconding from parole and failing to register in Sacramento after leaving Rocklin. However, the arguments did not go to defendant’s propensity but rather, to his credibility.id: 21203
The prosecutor did not commit prejudicial misconduct by arguing that abiding conviction for purposes of reasonable doubt does not require a permanent belief. Defense counsel, when arguing reasonable doubt during closing argument suggested the required abiding conviction was a "permanent sort of belief." The court sustained the prosecutor's objection that counsel had misstated the law. The prosecutor thereafter argued the abiding conviction can be more temporary. Defendant argued that by limiting his attorney's argument and allowing the prosecutor's, the court misled the jury regarding "permanency" as it relates to an abiding conviction. However, there was no prejudicial misconduct by the prosecutor since there was no reasonable likelihood the jury misunderstood the concept of reasonable doubt based on the prosecutor's comments. id: 20928
Prosecutor’s comment in closing argument that defense counsel failed to present a good defense because none existed was not an improper attack on defense counsel. During closing argument, the prosecutor noted that defense counsel was skilled and professional, but he did not present a good defense because none existed. Characterizing the defense as weak was not an improper attack on defense counsel. id: 20689
The prosecutor did not err during penalty phase closing argument in referring to a book that was not in evidence.The prosecutor did not err at the penalty phase in referring to a new book called A Nation Of Victims. While the book was not admitted into evidence, an advocate may make comments during argument regarding common experience, history or literature.id: 20452
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 by asking the jurors to imagine the condition of the victim's bodies the day after the killings.Defendant argued that prosecutor committed misconduct during the guilt phase closing argument by asking the jurors to use their imaginations to recreate what the bodies would have looked like the day after the killing. The comment did not imply the existence of facts outside the record, but rather asked jurors to draw inferences from the evidence at trial.id: 20272
Jurors would not reasonably have understood the prosecutor's references to defendant's "strange world" as psychological evidence that had not been introduced.Defendant argued the prosecutor argued matters outside the record by referring to defendant's "strange world" and "strange life." However, contrary to defendant's claim, no reasonable juror would have understood those comments to refer to psychological evidence that had not been introduced.id: 20257
Likening a vicious murderer to a wild animal does not invoke racial overtones.Defendant argued the prosecutor's jungle metaphor during closing argument was a thinly veiled racist allusion that constituted prejudicial misconduct. The prosecutor was attempting to focus the jury's attention on the vicious nature of the crime. He clearly wanted the jury not to be misled by defendant's benign and docile appearance at trial, but to remember him as the murderer. Defendant's complaint that the Bengal tiger argument was a thinly veiled racist allusion did not withstand scrutiny.id: 12484
The prosecutor did not improperly argue guilt by association in a case involving a priest, by emphasizing that priests commit crimes at a time close to the pedophile priest scandals.Defendant, a Catholic priest, was convicted of several sex offenses involving teenage youths. During closing argument, the prosecutor noted that priests are human and they commit horrendous crimes. The Court of Appeal erroneously found this was prosecutorial misconduct, in that the prosecutor urged "guilt by association" linking defendant to the numerous pedophile priest stories that were recently reported in the news. The argument simply asked the jurors not to give the defendant favorable treatment because he was a priest. Neither was there improper guilt by association when the prosecutor referred to a policy in the archdiocese that prohibited priests from being alone in a car with a minor - which again was likely a product of the recent scandals.id: 20064
The prosecutor did not improperly ask the jurors to view the crimes through the eyes of the victim by giving hypotheticals suggesting a victim might recall a specific detail but not other less significant details.During closing argument in a case where a Catholic priest was charged with improper sex acts against minors, the prosecutor provided two hypothetical situations, designed to emphasize that a victim in a stressful situation is likely to remember a significant detail, or a particular item in the room, even if he or she could not recall insignificant details. Contrary to the defense claim and the Court of Appeal holding, this was not a request for the jurors to view the crimes through the eyes of the victim.id: 20065
The prosecutor's statement that she thought defendant was guilty was a comment on the evidence and did not reflect a personal belief based on evidence not presented.During closing argument, the prosecutor responded to the defense suggestion that she was attacking defense counsel who was mean and dumb. The prosecutor said she did not believe those things but that defense counsel's cross-examination of the victims demonstrated they were credible. She continued: "I don't think counsel is mean or stupid. But I think his client is guilty." This was not an improper statement of a personal belief that defendant was guilty based on facts not presented at trial. It was a comment on the evidence. Even if the comment was improper, it did not require reversal as there was no defense objection and counsel may have had a good tactical reason for not objecting.id: 20066
The prosecutor did not err by commenting in closing argument about restoring law and order to the community. The prosecutor did not commit misconduct in closing argument as the comments about restoring law and order to the community were an appeal for the jury to take its duty seriously, not an effort to incite the jury against defendant. Moreover, the prosecutor did not prejudicially err by suggesting the deceased victim would have been able to identify defendant, as the statements merely emphasized that the victim was dead.id: 19993
The prosecutor improperly argued the giving of the manslaughter instruction did not mean the court believed the evidence supported a conviction for that offense.The prosecutor committed misconduct in arguing to the jury that by instructing on voluntary manslaughter, the court did not believe there was evidence of a manslaughter. This is different from suggesting the jury should not interpret the instruction as an indication that the court believes there is insufficient evidence to support the charged offense. The court did not address the prejudicial impact of the misconduct because it reversed the conviction for other reasons.id: 20023
The prosecutor committed misconduct by encouraging the jurors to impose their own subjective judgment in place of an objective standard of reasonableness.The prosecutor committed misconduct by misstating the law when he told the jurors that they, as individuals, could subjectively define the reasonable person standard. However, the error was harmless where the court admonished the jurors and gave them the correct standard.id: 19982
The prosecutor's statement that he was "choked up" by the testimony was an improper assertion of his personal beliefs.The prosecutor committed misconduct during argument to the jury when he acknowledged being an experienced prosecutor who was "choked up" by the testimony of a witness. This was an improper assertion of personal beliefs, but the trial court did not abuse its discretion in denying the request for a retrial.id: 19983
The prosecutor may not ask the jury to view the crimes through the eyes of the victim.The prosecutor's request that the jury imagine the fear experienced by the victims was improper. However, the error was harmless where the improper reference was brief and the evidence of guilt was overwhelming.id: 19984
The prosecutor committed misconduct by telling the jurors to consider themselves victims. The prosecutor committed misconduct during the penalty phase closing argument by telling the jurors to consider themselves victims of the defendant. However, the trial court properly admonished the jurors to disregard the statement.id: 19985
Prosecutor did not improperly vouch for the witness by emphasizing that he testified pursuant to a plea agreement that required his truthful testimony. The prosecutor did not improperly vouch for the credibility of its key witness by emphasizing the witness testified pursuant to this plea agreement which required him to testify truthfully. There was no suggestion that the prosecutor had personal knowledge of the facts outside the record showing the witness was telling the truth.id: 19701
The prosecutor did not commit misconduct in rebuttal argument by referring to defense counsel's summary of the evidence as a "bald-faced lie." The prosecutor did not commit misconduct by stating in rebuttal argument that defense counsel imagined things beyond the evidence and told them a bald-faced lie. The remarks were merely responsive to defense counsel's own arguments on the state of the evidence. The same was true of the prosecutor's remark that defense counsel was on "an imaginary trip" when summarizing the testimony of one witness. Neither did the prosecutor err by referring to defendant as "cold-blooded" and a "person with no soul."id: 19230
The prosecutor did not err in penalty phase argument by emphasizing a philosophy that we are collectively responsible to see that justice is served.In penalty phase closing argument, the prosecutor referred to several philosophers included Aryeh Neir who rejected the notion that it does no good to punish a murderer because it will not bring the victim back to the community. This was not the equivalent of a biblical passage demanding the death penalty. The prosecutor was merely encouraging the jurors to embrace a philosophy that we are collectively responsible to see that justice is served and the rule of law implemented.id: 19232
The prosecutor's claim that the defense expert's testimony constituted malpractice was an appropriate comment on the doctor's credibility.The prosecutor did not commit misconduct by arguing during penalty phase closing argument that the defense mental
health expert's testimony was so questionable that it could amount to malpractice. Even though harsh, the argument was a proper attack on the witness's credibility, suggesting a bias in favor of the defense.id: 19007
The prosecutor did not commit misconduct by asking defendant to explain why the prosecution witnesses might lie.Defendant argued the prosecutor committed misconduct by asking defendant why two prosecution witnesses would lie. However, there was no misconduct because the prosecutor did not ask whether the witnesses lied, but only assuming they did lie what was their motive for doing so.id: 18960
The prosecutor's comment that defendant was a sexual sadist was not a medical diagnosis sought to be used improperly as an aggravating factor at the penalty phase.During penalty phase closing argument, the prosecutor referred to defendant as a sexual sadist. Defendant argued it was improper to argue he suffered from a mental disorder and the prosecutor improperly urged the jury to consider the disorder as an aggravating factor. However, the prosecutor's argument related to defendant's conduct at the time he murdered the victim and could not reasonably have been construed as a medical diagnosis that defendant suffered from sexual sadism.id: 18962
The prosecutor's incorrect suggestion that defendant did not testify to things defense counsel promised in his opening statement was not misconduct.Defendant argued the DA committed misconduct in closing argument. In defense counsel's opening statement he said defendant would testify that he and Felix entered the victim's room. Defendant so testified. In closing argument the prosecutor said defense counsel broke his promise that defendant would testify that he and two others entered the room. The prosecutor's incorrect suggestion that a discrepancy existed did not constitute misconduct. The prosecutor suggested the jurors check their notes on the issue, and had they done so, they would have known he was incorrect on this point. It could not be assumed that the jury drew the most damaging inference from the prosecutor's incorrect remarks.id: 18881
The prosecutor did not err by referring to defendant's gun tatoo in closing argument after a witness testified he had never seen defendant with a gun.Defendant argued the prosecutor committed misconduct by referring to his gun tatoo in closing argument. Defendant's friend had testified he never saw defendant with a gun. Because the existence of a gun tatoo on someone's body gives rise to the inference that the person may be familiar with guns, the evidence of the tatoo tended to impeach the witness's testimony, and was a proper subject for closing argument.id: 18683
The prosecutor did not present inconsistent theories by arguing Anderson was not a suspect after stating in an earlier hearing outside the jury's presence that this was not the case.At a hearing to determine the admissibility of the prior statements of Anderson, who could not be located, the prosecutor mentioned that Anderson was a suspect. The prosecutor later told the jury this was not so. Defendant argued the prosecutor committed misconduct by arguing inconsistent theories. However, the first statement, made outside the presence of the jury simply challenged why the defense made no genuine attempt to locate the material witness. Even if the statement contradicted the prosecutor's closing argument regarding Anderson's status as a suspect in the murder case, the prosecutor did not present inconsistent theories of its case.id: 18646
The prosecutor did not improperly vouch for his witnesses by saying in closing argument that he was giving the jury truthful and credible evidence.The prosecutor did not improperly vouch for the credibility of the state's witnesses by stating during closing argument he wanted to give the jurors reliable and credible evidence, and that he told a witness to be truthful.id: 18638
The prosecutor's biblical reference to evil in guilt phase closing argument was not an appeal to religious authority, but rather a literary illustration of the gravity of the offenses.Defendant argued the prosecutor committed misconduct by using biblical references during closing arguments at the guilt phase. However, a reasonable juror would likely have understood the prosecutor's biblical references merely as a powerfully dramatic illustration of the gravity of defendant's crimes. The prosecutor did not argue that biblical law or doctrine required defendant's conviction.id: 18404
The prosecutor did not commit Griffin error during penalty phase closing argument by stating defendant should be apologizing for what he did to his poor victims.During closing argument at the penalty phase the prosecutor stated defendant should have been on his knees apologizing for what he did to his poor victims. Contrary to defendant's claim, the remark was not a comment on defendant's failure to testify, but rather an assertion that defendant was proud of the murders when he should have been ashamed. id: 18405
Prosecutor did not commit misconduct by commenting to the jury at the competency trial that the only reason the competency issue was raised was because defense counsel thought defendant was losing the trial.Defendant argued the prosecutor committed misconduct during the competency trial by suggesting defendant's attorneys only raised the competency issue because they thought he was going to lose at trial and that their emotional involvement clouded their judgment. However, the prosecutor's comments were supported by the evidence and fell within the bounds of permissible argument.id: 18170
The prosecutor did not err in closing argument by comparing defendant's torture to the Spanish Inquisition.As an illustration to explain murder by torture, the prosecutor argued that during the Spanish Inquisition, suspected heretics were tortured and killed. Defendant argued the prosecutor committed misconduct by comparing his conduct to the Spanish Inquisition and persecution of early Christians. However, while the historical events the prosecutor mentioned had religious significance, the prosecutor made no improper appeal to religious authority.id: 18038
Prosecutor's reference to Nazi executioners was not misconduct as it was made only to point out that multiple murderers can look like ordinary people.Defendant argued the prosecutor committed misconduct during closing argument by comparing defendant to Adolf Eichmann and Adolf Hitler. However, the prosecutor's reference to "one of the main executioners at the Nazi concentration camp", without reference to a specific name, was made only to point out that multiple murderers can look like ordinary people, such as defendant.id: 17307
Prosecutor did not err in penalty phase closing arguments by referring to the possibility that sex crimes were also committed against the murder victims.Defendant argued the prosecutor committed misconduct during penalty phase closing argument by arguing defendant committed sex crimes against the murder victims as shown by the nude body of one victim pressed against defendant as he stabbed her, and that he assaulted another victim. However, the prosecutor was entitled to discuss the circumstances of the crime. Where the circumstances showed the possibility of sexual conduct or motivation (particularly in light of defendant's criminal history) the prosecutor could highlight these facts despite the absence of specific sex crime charges.id: 17317
The prosecutor did not improperly vouch for a witness where she claimed the witness was credible and that aspects of his testimony showed he was telling the truth.Although the prosecutor testified that a key witness was credible she did so in the context of his being an eyewitness to the crime and argued that aspects of his testimony suggested he was telling the truth. This argument was not an improper expression of a personal belief in the credibility of a witness.id: 17081
The prosecutor did not encourage holdout jurors to capitulate to the majority by suggesting if they had any doubts to listen to the arguments of the other jurors.Defendant argued the prosecutor committed misconduct by encouraging holdout jurors to capitulate to the majority. However, the prosecutor did not exhort holdout jurors to submit to the majority's views, but argued the evidence of guilt was so strong that if any juror had doubts they should step back and use their common sense. The exhortation to "listen to your fellow jurors" in this context meant to listen to the arguments of the other jurors. id: 17082
Prosecutor did not commit Griffin error at the penalty phase by arguing the defense never showed the sharp object defendant possessed in jail was something other than a stabbing instrument.During penalty phase argument, the prosecutor discussed defendant's possession of a sharp instrument while in jail. The prosecutor argued defendant presented no evidence showing that he possessed the object for a purpose other than force or violence. This is not improper Griffin argument commenting on defendant's failure to testify. The comment followed a statement that the defense expert could have testified the object was not a stabbing instrument.id: 16666
Prosecutor did not commit misconduct by commenting on defense counsel's "tricks" or "moves" used to demonstrate a witness's confusion.The prosecutor did not commit misconduct at the guilt phase of a capital case by referring to defense counsel's "tricks" or "moves" used to demonstrate a witness's confusion or uncertainty. The references did not amount to a personal attack on defense counsel's integrity.id: 16586
Prosecutor did not err by arguing alternative versions of the events in the penalty phase closing argument.The prosecutor did not commit misconduct in the closing argument at the penalty phase by arguing alternative versions of the events leading up to the murder, because the jury's guilt phase verdict did not indicate which version it believed, and the prosecutor maintained that death was appropriate under any of the possible scenarios.id: 16388
Prosecutor did not commit misconduct in comparing defendant to a terrorist in closing argument.Defendant who was charged with capital murder after the sexual assault and then killing of the victim, argued the prosecutor committed misconduct in his rebuttal closing argument by referring to him as a terrorist and that the court did not cure the harm. However, the reference to terrorism was fair under the circumstances. When discussing sex and kidnapping offenses involving the elements of force, fear and lack of consent, the prosecutor was allowed to argue the existence of those elements in vigorous terms.id: 15923
Prosecutor's argument that a defense expert witness did not testify as promised by defense counsel did not impermissibly shift the burden of proof.The prosecutor remarked in closing argument that defense counsel promised to present the testimony of a neuropsychologist, but she did not show up, and the jury could infer that if the witness had information helpful to the defense she would have testified. Defendant argued the comments shifted the burden of proof to the defense in violation of due process principles. However, the remark was a comment on the weakness in the defense case and did not suggest defendant had the burden of proving his innocence.id: 15925
References to victim's disabilities in opening statement was not an improper attempt to inflame the jury but rather had a logical bearing on the felony-murder theory.Defendant argued the prosecutor committed misconduct during his opening statement by providing a "social history" of the victim which was calculated to inflame the jurors. The challenged remarks concerned the physical disabilities of the victim. The remarks placed the victim's possession of a cane and wheelchair in context for purposes of the robbery charge and showed one stolen item - the cane - was within her immediate presence when the shooting occurred. The description of the victim in opening statement was not an untethered plea for sympathy, but had some logical bearing on the prosecution's theory of murder during the course of robbery and burglary.id: 15926
Supreme Court permits comment on defendant's opportunity to hear witnesses and tailor testimony.During closing arguments at defendant's state trial, the prosecutor pointed out that defendant had the opportunity to hear all other witnesses testify and to tailor his own testimony accordingly. In a 5-2-2 opinion written by Justice Scalia, the Supreme Court upheld the prosecutor's comments. In contrast to the comments in <i>Griffin v. California</i>, 380 U.S. 609 (1965), which suggested that a defendant's silence is "evidence of guilt," the comments here concerned defendant's credibility as a witness. They were therefore in accord with the rule that when a defendant takes the stand, his credibility may be assailed like that of any other witness. See <i>Perry v. Leeke</i>, 488 U.S. 272, 282 (1989). It made no difference that defendant was required to be present at the trial. Justices Stevens and Breyer concurred on the narrow ground that the argument here survived constitutional scrutiny, but argued that such comments should be "discouraged rather than validated." Justices Ginsburg and Souter dissented, arguing that the majority opinion "transforms a defendant's presence at trial from a Sixth Amendment right into an automatic burden on his credibility."id: 15068
Prosecutor did not commit misconduct by arguing defense counsel's job was to create smoke and red herrings and his job was to show jurors the truth.During closing argument the prosecutor stated the defense lawyers were "extremely fine" and that it was their job to create straw men, and put up smoke and red herrings. He said it was his job to straighten that out and show the jury where the truth lies. The comments were not a personal attack on defense counsel but was rather an admonition not to be misled by the defense interpretation of the evidence.id: 15010
The prosecutor did not commit misconduct since he did not argue that ingesting a drug, by itself, was sufficient to support a conviction for possession.Evidence of a defendant's ingesting an illegal drug is, standing alone, insufficient to support a conviction for possessing that drug. Defendant argued the prosecutor committed misconduct in closing argument by arguing that because defendant was under the influence of PCP he must have possessed the drug. However, he did not argue that being under the influence, by itself, was enough to establish possession. The evidence showed that defendant refused to take a urine test for the substance's presence. That evidence is not consistent with unwitting or coerced ingestion. The prosecutor urged the jurors to consider the evidence. While it was a close case, there was no misconduct. Moreover, the instructions did not permit a conviction solely on evidence of intoxication.id: 15011
Prosecutor's argument regarding his immunity agreement with the accomplice was not improper.Defendant argued the prosecutor in his closing arguments misstated the legal effect of the immunity agreement with defendant's accomplice. The prosecutor stated that under the agreement the witness could have said defendant did not commit the offenses and thereafter she could simply have walked away. Defendant claimed the witness could not simply walk away after exonerating him, because any such attempt would be wholly inconsistent with her prior statements implicating him, and she would undoubtedly be charged with perjury and risk losing immunity. However, the prosecutor simply noted the agreement merely required the witness to tell the truth and she would not lose her immunity if she truthfully exonerated defendant.id: 12503
Prosecutor's assurances based on the record regarding the reliability of an expert witness was not improper vouching.Prosecutor's assurances based on the record regarding the reliability of the ballistics expert was not an improper vouching which usually involves an attempt to bolster a witness by reference to facts outside the record. Here the prosecutor properly relied on facts of record and the inferences reasonably drawn therefrom, rather than any purported personal knowledge or belief.id: 12504
Prosecutor's comment on the absence of a defense serologist was not improper.Defendant intended to call a serologist as a witness. The People indicated that once she took the stand they would question her about all confidential communications between her and defense counsel. The court indicated the People could only question on the communications which helped the expert form her opinions. The People then asked whether they could call the defense expert on rebuttal to obtain the same information. The court declined to rule on the issue. Defense counsel then decided not to call the expert. The People in closing argument then commented on the absence of a defense serologist. The prosecutor was entitled to comment on the state of the evidence, including the lack of conflicting serological evidence.id: 12505
Prosecutor's comment that defense counsel's final argument raising new arguments would be another device of some sort did not improperly impugn defense counsel's honesty.The prosecutor in his closing remarks observed defense counsel would have the last chance to argue and suggested if counsel raised any new arguments, then that is another device of some sort. The remark was too mild to constitute an improper impugning of defense counsel's honesty.id: 12506
Prosecutor's comment that this was an outstanding murder investigation did not amount to improper vouching for the state's witness.The prosecutor concluded his guilt phase argument by stating: This is an outstanding murder case. It was an outstanding murder investigation. The comments could not reasonably have been interpreted as a personal endorsement of the state's eyewitnesses. Indeed, the remark was followed immediately by an admonition to the jurors to do your own analysis of the evidence and then match that with the law.id: 12507
Prosecutor's comments did not directly compare the instant defendants with depraved defendants in prior cases.Defendants argued the prosecutor improperly compared them to the most depraved criminals he had encountered. However, the prosecutor did not directly compare the defendants in the instant case to those in previous cases. To the extent he drew on other cases as examples of cold-blooded behavior, the characterization was justified where the evidence showed unequivocally that the killers shot an unarmed man at point blank range with no justification. While the comments skirted the boundaries of fair conduct they did not constitute misconduct.id: 12508
Prosecutor's comments did not imply that the reasonable doubt standard does not apply to special circumstance allegations.The prosecutor argued to the penalty phase jury: The special circumstance is not <197> does not call for a finding of guilty or not guilty. Calls for merely a finding of true or not true. Defendant argued these words implied that a special circumstance allegation need not be proved beyond a reasonable doubt. However, the comment was not improper. In fact, other remarks in the argument made plain that the reasonable doubt standard applies to special circumstance allegations.id: 12509
Prosecutor's demonstrative use of a hammer was not prejudicial error.The prosecutor's hammer blows were intended to emphasize the heinous nature of the murder and the extent of the victim's suffering. Although counting out 23 hammer blows was unnecessary to accomplish this purpose, any misconduct was harmless since the jury was presented with medical and other testimony outlining the cause and extent of victim's wounds.id: 12510
Prosecutor's recommendation of consistency to preclude reversal on appeal was not prejudicial error.The prosecutor told the jurors to make a consistent finding on all of the murders because you have a chance of having your wishes carried out, as this case goes on through the appellate court, more if you are consistent in your findings. The mere mention of appeal was improper but not prejudicial where it did not suggest appellate correction of an erroneous death verdict.id: 12511
Prosecutor's reference to the crimes as atrocities did not constitute misconduct.Prosecutor argued the evidence at trial showed the jury that the atrocious crimes were not so unique as to be unbelievable. His reference to the crimes as atrocities did not constitute misconduct.id: 12512
Prosecutor's statement of his opinion of defendant's guilt is not improper if he does not imply he has facts of guilt which were not in evidence.In commenting on the strength of his evidence, the prosecutor stated his opinion as to defendant's guilt. He did not, however, allude to any hidden facts nor did he state that he had always believed the defendants were guilty. The argument was not improper.id: 12515
Prosecutor's statement regarding defendant's Gee willikers, golly gee courtroom appearance was not improper.During his opening statement, the prosecutor told the jury not to be fooled by defendant's Gee willikers, golly shucks appearance. Defendant argued this was an improper comment on defendant's nontestimonial courtroom behavior. However, the prosecutor simply advised the jury to ignore defendant's courtroom demeanor and determine his guilt or innocence on the basis of the evidence.id: 12516
Reference to years of experience of the police officers did not amount to improper vouching for their credibility.Defendant argued the prosecutor improperly vouched for the law enforcement officers' credibility. However, the prosecutor limited her remarks to facts of record, namely, the years of experience of the officers involved, and her vouching was clearly based on inferences reasonably drawn therefrom, rather than on her personal belief or knowledge.id: 12518
Referring to the jury's domain as fact finders did not amount to an appeal to disregard the law.Prosecutor stressed to the jury that they were the fact finders and should leave to the judge and attorneys, determinations regarding the law. Such argument was not an appeal to the jury to disregard the law.id: 12519
The prosecutor did not commit misconduct in disparaging the integrity of the defense expert witness.Defendant argued the prosecutor disparaged the integrity of the defense expert witness by arguing that a real scientist would never stretch any principle for a buck. While argument may not denigrate the integrity of opposing counsel, harsh and colorful attacks on the credibility of opposing witnesses are permissible.id: 12521
Use of such epithets as mass murderer, rapist and walking depraved cancer in penalty phase arguments did not amount to prosecutorial misconduct.Defendant argued that he was prejudiced by the prosecutor's use of the epithets mass murderer, rapist perverted murderous cancer and walking depraved cancer in referring to defendant during penalty phase closing arguments. Strictly speaking, the former label fit defendant inasmuch as he had been convicted of rapes and two murders. The latter epithets were within the range of permissible comment regarding egregious conduct on defendant's part.id: 12523
Comment that defense can say pretty much whatever they want did not suggest counsel improperly fabricated a defense.During closing argument the prosecutor stated: But the defense can come in here and say pretty much whatever they want to. That's the system. This was not a comment suggesting defense counsel improperly fabricated a defense nor did it otherwise impugn defense counsel's honesty or integrity.id: 12481
Failure to object barred review of claim regarding the prosecution's reference to a tape recorded statement that had not been admitted into evidence.The prosecutor's reference to a tape recording of a witness' statement as not exonerating defendant was arguably improper since the tape recording had not been admitted into evidence. However, any ensuing prejudice readily could have been cured by a timely objection and admonition.id: 12482
Isolated reference to race in closing argument was not an attempt to prejudice the jury against defendant on account of race.To persuade the jury to reject defendant's testimony that the victim consented to the sexual intercourse, the prosecutor argued the victim was a hard working middle class woman who was a happily married mother of three and that it was not likely she would consent to have intercourse with a strange man - frankly any man - a black man, on her living room couch with her five year old in the house. Defendant claimed the argument that included racial references likely to incite racial prejudice violated due process and equal protection principles. However, while there was no need for the racial reference, there was also no prejudice. The reference added little to the force of the argument, which relied primarily on the implausibility of the victim engaging in sexual intercourse with a virtual stranger in the presence of her five year old child.id: 12483
Prosecutor did not argue that defense counsel was obligated to obscure the truth.In closing argument, the prosecutor said that defense attorneys never admit their client's guilt but argue the existence of doubt sufficient to justify a not guilty verdict. This comment did not amount to an argument that defense counsel was obligated to obscure what he knew to be the truth.id: 12489
Prosecutor did not commit misconduct in using hypothetical examples in closing argument.Defendant argued the prosecutor's use of hypothetical examples constituted misconduct because they asserted facts not in evidence. However, there was no impropriety in using hypothetical examples to show that there are varying degrees even among capital murders. No reasonable juror would have understood the expressly hypothetical examples to refer to evidence outside the record.id: 12490
Prosecutor did not err in arguing his office would not prosecute someone who they know did not commit the murder.Defendant argued the prosecutor improperly expressed his personal belief in defendant's guilt of the murder when he argued the district attorney is not going to prosecute anybody else for murder who they know didn't commit the murder. However, the jury had before it all of the evidence. There was no danger it would believe the prosecutor was basing his argument on information not in evidence.id: 12491
Prosecutor did not err in arguing that denial of the mental state is the last refuge of the hopelessly guilty.During closing argument, the prosecutor commented on how the defendant changed his story from complete denial of involvement to denying the mental state, the last refuge of the hopelessly guilty. Defendant argued these words amounted to a statement that the presumption of innocence did not apply in this case. However, a reasonable juror would have construed the phrase to mean that a mental defense can be asserted by all criminal defendants, even those for whom no defense is actually available.id: 12492
Prosecutor did not err in stating he thought the defense expert was just a hired opinionDuring closing argument, the prosecutor said we have the opinion of Dr. Rosenthall, who is, in my judgment, just a hired opinion. This was not an improper remark drawn from facts not in evidence, but rather an observation that the expert was hired to express his opinion.id: 12493
Prosecutor did not err in telling the jury that he represented the People or that discovery was not a two-way street.During voir dire, the prosecutor stated that his role was not strictly adversarial, that his client was the People and he was obligated to ensure that people received fair trials. He pointed out that he was obligated to present the defense with a list of his witnesses and what they would testify to. By way of contrast he stated defense counsel was an adversary who had no duty to divulge his witness list and that his sole obligation within certain ethical grounds was to obtain an acquittal for his client. The prosecutor's remarks were not an improper attempt to impugn defense counsel's integrity but rather a factual statement that the prosecutor represents the People and that discovery is not a two-way street.id: 12494
Prosecutor did not imply that defense counsel had contrived with defendant to fabricate a defense.Defendant argued that while questioning him concerning his guilty pleas to outstanding drug charges, the prosecutor implied that defense counsel had contrived with defendant to fabricate a defense during the murder trial. However, the questions on cross-examination were not only proper in view of defendant's direct examination but were also relevant to show defendant's possible motive in pleading guilty to the PCP offense when nothing in the questioning supported an inference that defense counsel in either the murder case or the PCP cases fabricated a defense on the instant charge.id: 12495
Prosecutor did not imply defendant was fabricating a defense but merely pointed out inconsistencies between extrajudicial statements and trial testimony.In the prosecutor's cross-examination of defendant he asked What happened to the alibi defense we were going to hear? The prosecutor did not imply that defendant was fabricating a defense but was merely attempting to point out the inconsistencies between defendant's extrajudicial statements and trial testimony. This was permissible impeachment.id: 12496
Prosecutor did not prejudicially err in commenting that defense counsel may have acted improperly in presenting the defense.During closing argument the prosecutor argued defense counsel twisted the law and the facts. These were simply comments that the jury should not be distracted from the relevant evidence and the reasonable and logical inferences to be drawn from that evidence. Any impermissible inference from the prosecutor's comment that defense counsel may have acted improperly in presenting the defense was harmless in light of the overwhelming evidence of guilt.id: 12497
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.
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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