When a prosecutor recreates the crime from the victim's perspective in his closing argument, can he be found to have committed serious misconduct by using the character as a witness?

The court's conclusion that the prosecutor committed serious misconduct was entirely correct. See Darden v. Wainwright, 477 U.S. 168, 18081, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986) (observing that inflammatory and misleading argument is improper). In a similar context, we held that a prosecutor commits misconduct by recounting the crime from the victim's perspective during closing argument:

[T]he prosecutor engaged in misconduct when he delivered a soliloquy in the voice of the victim. By doing so, the

[788 F.3d 1114]

[p]rosecutor inappropriately obscured the fact that his role is to vindicate the public's interest in punishing crime, not to exact revenge on behalf of an individual victim. Furthermore, the prosecutor seriously risked manipulating and misstating the evidence by creating a fictitious character based on the dead victim and by testifying in the voice of the character as if he had been a percipient witness. Finally, by testifying as [the victim], the prosecutor also risked improperly inflaming the passions of the jury through his first-person appeal to its sympathies for the victim who, in the words of the prosecutor, was a gentle man who did nothing to deserve his dismal fate.

[788 F.3d 1114]

Drayden v. White, 232 F.3d 704, 71213 (9th Cir.2000).⁵