Is it generally improper for a prosecutor to accuse defense counsel of fabricating a defense, or to imply that counsel is free to deceive the jury?

California, United States of America


The following excerpt is from People v. Carsten, A132407 (Cal. App. 2012):

"It is generally improper for the prosecutor to accuse defense counsel of fabricating a defense [citations], or to imply that counsel is free to deceive the jury [citation]. Such attacks on counsel's credibility risk focusing the jury's attention on irrelevant matters and diverting the prosecution from its proper role of commenting on the evidence and drawing reasonable inferences therefrom." (People v. Bemore (2000) 22 Cal.4th 809, 846.) Here, the remarks referenced by defendant were unfortunate, at best. They fall well short of "pervasive misconduct." "[T]he prosecutor has wide latitude in describing the deficiencies in opposing counsel's tactics and factual account." (Ibid.) "An argument which does no more than point out that the defense is attempting to confuse the issues and urges the jury to focus on what the prosecution believes is the relevant evidence is not improper." (People v. Cummings (1993) 4 Cal.4th 1233, 1302, fn. 47.)

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