What is the test for misconduct in the criminal justice system?

The standards used to evaluate prosecutorial misconduct are well established. "A prosecutor's misconduct violates the Fourteenth Amendment to the United States Constitution when it 'infects the trial with such unfairness as to make the conviction a denial of due process.' [Citations.] In other words, the misconduct must be 'of sufficient significance to result in the denial of the defendant's right to a fair trial.' [Citation.] A prosecutor's misconduct that does not render a trial fundamentally unfair nevertheless violates California law if it involves 'the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.' " (People v. Cole (2004) 33 Cal.4th 1158, 1202.) To establish such misconduct "bad faith on the part of the prosecutor is not required." (People v. Centeno (2014) 60 Cal.4th 659, 666.)

A defendant's attack on the prosecutor's statements to the jury must show that " '[i]n the context of the whole argument and the instructions,' " there was " 'a reasonable likelihood the jury understood or applied the complained-of comments in an improper or erroneous manner. [Citations.] In conducting this inquiry, we "do not lightly infer" that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements.' " (People v. Centeno, supra, 60 Cal.4th at p. 667.)