How have the courts dealt with comments by a prosecutor in their closing argument?

Most of the prosecutor's comments came during voir dire, and "errors or misconduct occurring during jury voir dire, prior to the introduction of evidence or the giving of formal instructions, are far less likely to have prejudiced the defendant." (People v. Medina (1995) 11 Cal.4th 694, 745.) Further, after the close of evidence, the jury was given the standard instruction on the presumption of innocence, reasonable doubt, and the prosecutor's burden of proof. (CALCRIM No. 220.) The jury was also instructed that nothing the attorneys said was evidence (CALCRIM No. 222), and if the attorneys' comments on the law conflicted with the court's instructions it must follow the instructions (CALCRIM No. 200). This was sufficient "both to explain to the jury the prosecution's burden of proof and to dilute any confusion or uncertainty that may have been created by the prosecutor's" comments during voir dire. (Medina, supra, at p. 745 [finding no prejudicial misconduct from use of chart during voir dire purportedly illustrating reasonable doubt standard].)

With regard to the prosecutor's brief Hawaii comment during rebuttal closing argument, " '[a]rguments of counsel "generally carry less weight with a jury than do instructions from the court. The former are usually billed in advance to the jury as matters of argument, not evidence [citation], and are likely viewed as the statements of advocates; the latter, we have often recognized, are viewed as definitive and binding statements of the law." [Citation.]' [Citation.] 'When argument runs counter to instructions given a jury, we will ordinarily conclude that the jury followed the latter and disregarded the former, for "[w]e presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words

Page 16

spoken by an advocate in an attempt to persuade." ' " (People v. Katzenberger (2009) 178 Cal.App.4th 1260, 1268.)