What is the current state of the law on misconduct when a prosecutor makes a closing argument stating facts that are not in evidence?

California, United States of America


The following excerpt is from People v. Jackson, E070511 (Cal. App. 2020):

As stated in People v. Hill (1998) 17 Cal.4th 800, 827-828, stating facts during closing argument that are not in evidence, "is 'clearly . . . misconduct' [citation], because such statements 'tend[ ] to make the prosecutor his own witness offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, "although worthless as a matter of law, can be 'dynamite' to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence." [Citations.]' [Citations.] 'Statements of supposed facts not in evidence . . . are a highly prejudicial form of misconduct, and a frequent basis for reversal.'

Page 39

[Citation.]" (Ibid.)

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