Can a prosecutor make improper comments in closing arguments about the burden of proof in a criminal case?

remarks would, or could, have been understood by a reasonable juror. [Citations.] If the remarks would have been taken by a juror to state or imply nothing harmful, they obviously cannot be deemed objectionable." (People v. Benson (1990) 52 Cal.3d 754, 793.)

In People v. Nguyen, the principal case relied upon by appellant, the prosecuting attorney had argued in closing:" 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. [j] It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes." (People v. Nguyen, supra, 40 Cal.App.4th at p. 35.) The defendant contended on appeal that "the prosecutor committed misconduct by misstating the standard of reasonable doubt." (Ibid.) The appellate court stated: "The prosecutor's argument that people apply a reasonable doubt standard 'every day' and that it is the same standard people customarily use in deciding whether to change lanes trivializes the reasonable doubt standard. It is clear the almost reflexive decision to change lanes while driving is quite different from the reasonable doubt standard in a criminal case. The marriage example is also misleading since the decision to marry is often based on a standard far less than reasonable doubt, as reflected in statistics indicating 33 to 60 percent of all marriages end in divorce. [Citations.]" (Id. at p. 36.) The court "strongly disapprove[d] of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry" and found that the argument was "improper even when the prosecutor, as here, also states the standard for reasonable doubt is 'very high' and tells the jury to read the instructions." (Ibid.)

In People v. Johnson, supra, 115 Cal.App.4th 1169, another case cited by appellant, it was the court that made improper comments regarding the burden of proof.

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