What is the test for a claim of prosecutorial misconduct premised on statements made during summation?

MultiRegion, United States of America

The following excerpt is from United States v. Solomon-Eaton, 14-4573-cr (2nd Cir. 2016):

2. To succeed on a claim of prosecutorial misconduct premised on statements made during summation, a defendant must show that the prosecutor's comments caused "substantial prejudice" such that the defendant was deprived of a fair trial. United States v. Tocco, 135 F.3d 116, 130 (2d Cir. 1998); see also United States v. Locascio, 6 F.3d 924, 945-46 (2d Cir. 1993). To assess whether substantial prejudice exists, we weigh "the severity of the misconduct, the measures adopted to cure [it], and the certainty of conviction absent the misconduct." United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002).

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