What constitutes reversible misconduct for a prosecutor who comments on a defendant's right to remain silent?

California, United States of America


The following excerpt is from People v. Johnson, B279405 (Cal. App. 2018):

"'Under California law, a prosecutor commits reversible misconduct if he or she makes use of "deceptive or reprehensible methods" when attempting to persuade either the trial court or the jury, and it is reasonably probable that without such misconduct, an outcome more favorable to the defendant would have resulted. [Citation.] Under the federal Constitution, conduct by a prosecutor that does not result in the denial of the defendant's specific constitutional rightssuch as a comment upon the defendant's invocation of the right to remain silentbut is otherwise worthy of condemnation, is not a constitutional violation unless the challenged action "'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" [Citations.] [] "'[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashionand on the same groundthe defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety. [Citation.]'"' (People v. Riggs

Page 85

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