What is the test for a claim of prosecutorial misconduct when a prosecutor's comments to the jury before the jury in a criminal case are deemed improper or improper?

California, United States of America


The following excerpt is from People v. Ballard, B282339 (Cal. App. 2019):

with such unfairness as to make the conviction a denial of due process. Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves the use of deceptive or reprehensible methods to attempt to persuade either the trial court or the jury." (People v. Morales (2001) 25 Cal.4th 34, 44.) "When a claim of misconduct is based on the prosecutor's comments before the jury . . . , ' " 'the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion.' " ' [Citations.] To preserve a claim of prosecutorial misconduct for appeal, a defendant must make a timely and specific objection and ask the trial court to admonish the jury to disregard the improper argument." (People v. Gonzales and Soliz (2011) 52 Cal.4th 254, 305.)

We review a prosecutor's remarks " '[i]n the context of the whole argument and the instructions' " to determine whether "there was 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner.' " (People v. Centeno (2014) 60 Cal.4th 659, 667.)

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