What is the test for a claim of pervasive misconduct during the closing argument of a criminal case?

California, United States of America


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

Defendant claims the prosecutor committed pervasive misconduct during closing argument by repeatedly impugning the integrity of his defense counsel and implying that counsel was fabricating his defense. He also asserts that to the extent defense counsel's failure to object has waived the misconduct claim, this failure constitutes ineffective assistance of counsel. He further contends the misconduct denied him his right to due process and a fair trial. " 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such " 'unfairness as to make the resulting conviction a denial of due process.' " [Citations.] Under state law, a prosecutor who uses deceptive or reprehensible methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citations.]" (People v. Lopez (2008) 42 Cal.4th 960, 965-966 (Lopez).)

We first observe defendant's counsel did not object to any of the challenged statements on the ground of prosecutorial misconduct. " 'A defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion, and on the same ground, the defendant objected to the action and also requested that the jury be admonished to disregard the perceived impropriety.' [Citation.]" (Lopez, supra, 42 Cal.4th 960, 966.) Absent an objection, the claim is only reviewable "if an admonition would not have cured the harm caused by the misconduct." (People v. Price (1991) 1 Cal.4th 324, 447.)

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