Prosecutors are supposed to act in accordance with the highest standards of conduct. But unfortunately, that doesn't always happen.
When a California prosecutor acts improperly at trial, and the defendant is convicted, it could be the basis to overturn the conviction and grant a new trial. But not automatically. "The ultimate question to be decided is, had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred."1
As former cops and prosecutors ourselves, our California criminal defense lawyers2 know how to identify acts of prosecutorial misconduct...and how to use it to your advantage.
What is Prosecutorial Misconduct?
Prosecutorial misconduct generally refers to "a dishonest act or attempt to persuade the jury or the court by the use of deceptive or reprehensible methods".3 It can actually take place at any point during the California criminal court process, although it most frequently occurs during
California courts have held that a variety of conduct constitutes prosecutorial misconduct. Some examples include (but are not limited to):
- commenting on inadmissible evidence,4
- intentionally eliciting inadmissible and/or prejudicial answers from witnesses,5
- conducting an improper cross-examination of the defendant or other defense witnesses,6
- appealing to jurors' passion or prejudice,7
- expressing personal opinions about the defendant's guilt or a witness' credibility,8
- purposely misstating the law or evidence,9
- improper name calling,10 and
- failing to disclose evidence favorable to the accused.11
Prosecutorial misconduct must cause prejudice
But remember, engaging in these types of acts do not by themselves necessarily constitute grounds for a mistrial or a new trial. The test is whether the conduct is so prejudicial to the defendant that it cannot be cured by either
- striking the evidence, and/or
- instructing the jury to disregard the improper comment, action, testimony, etc.12
What are the Remedies for Prosecutorial Misconduct?
If you can prove that the prosecutorial misconduct was so prejudicial that it couldn't be cured by one of the above solutions, you are entitled to prevail on a California motion for a new trial.13 However, this rule only applies where
- your California criminal defense attorney promptly objects to the alleged misconduct at the time it's committed, and
- asks the judge to instruct the jury to disregard the impropriety.14
But as Newport Beach criminal defense attorney Zachary McCready15 explains, "Depending on the circumstances, if your attorney failed to take these steps in response to an obvious display of prosecutorial misconduct, you could alternatively prevail on a claim of ineffective assistance of counsel."
Call us for help.
If you have additional questions about California's laws relating to prosecutorial misconduct, or you would like to discuss your case confidentially with one of our attorneys, do not hesitate to contact us at Shouse Law Group.
We have local criminal law offices in and around Los Angeles, San Diego, Orange County, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities.
You may also find helpful information in our related articles on California's Criminal Court Process; Pretrial Proceedings; Jury Trials; Sentencing Hearings; California Motions for a New Trial; and Ineffective Assistance of Counsel.
1People v. Prysock (1982) 127 Cal.App.3d 972, 998.
2Our California criminal defense lawyers have local Los Angeles law offices in Beverly Hills, Burbank, Glendale, Lancaster, Long Beach, Los Angeles, Pasadena, Pomona, Torrance, Van Nuys, West Covina, and Whittier. We have additional law offices conveniently located throughout the state in Orange County, San Diego, Riverside, San Bernardino, Ventura, San Jose, Oakland, the San Francisco Bay area, and several nearby cities. Please contact us at Shouse Law Group with any questions.
3People v. Guillebeau (1980) 107 Cal.App.3d 531, 549.
4People v. Aragon (1957) 154 Cal.App.2d 646. Prosecutor referred to the defendant failing a lie detector test.
5People v. Williams (1951) 104 Cal.App.2d 323. Prosecutor continuously tried to elicit hearsay and to illegally impeach his own witness.
6People v. Chandler (1957) 152 Cal.App.2d Supp. 916. Prosecutor sought to elicit testimony about unrelated arrest and misdemeanor convictions.
7People v. Stansbury (1993) 4 Cal.4th 1017. Improper for prosecutor to ask jury to view crime from eyes of murder victim, as appeal to sympathy for victim is out of place during an objective determination of guilt.
8People v. Conover (1966) 243 Cal.App.2d 38. The prosecutor stated that the defense witness was a perjurer, that defendant suborned perjury, and that he personally believed defendant to be guilty.
9People v. Bell (1989) 49 Cal.3d 502. The prosecutor committed misconduct by misstating the facts and the law in arguing that defendant's eyewitness reliability expert was not competent to offer an opinion because he had not read all of the police report, where the expert had already been qualified by the court.
10People v. Travis (1954) 129 Cal.App.2d 29, 39. (".name-calling is improper. It detracts from the dignity of the high office of district attorney. If tolerated by the court the use of such invectives may and often does lead to prejudicial misconduct.")
11Merrill v. Superior Court (1994) 27 Cal.App.4th 1586, 1594. ("Evidence that Olsen had emphatically refused to identify Merrill as one of the men in the vicinity of the robbery murder was exculpatory evidence for Merrill. It constituted substantial material evidence on the issue of guilt. Failure to disclose it violated the mandates of Ruthford and Brady. Whether that failure was intentional or negligent is irrelevant; its occurrence undermines the public's confidence in the criminal justice system and creates an impression that our government officers are our worst enemies, not our public servants. (Cf. Berger v. United States, supra, 295 U.S. at p. 88 [79 L.Ed. at p. 1321].) Justice was not done here. The error was substantial and material.")
12People v. Dontanville (1970) 10 Cal.App.3d 783, 795.
13People v. Milner (1988) 45 Cal.3d 227, 245.
See also California Penal Code 1181 PC -- California motion for a new trial. ("When a verdict has been rendered or a finding made against the defendant, the court may, upon his application, grant a new trial, in the following cases only. 5.when the district attorney or other counsel prosecuting the case has been guilty of prejudicial misconduct during the trial thereof before a jury.")
14People v. Ochoa (1998) 79 Cal.Rptr.2d 408, 427. ("As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion-and on the same ground-the defendant [requested] an assignment of misconduct and [also] requested that the jury be admonished to disregard the impropriety. [Citation.] Additionally, when the claim focuses upon comments made by the prosecutor 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." ( People v. Samayoa (1997) 15 Cal.4th 795, 841 [64 Cal.Rptr.2d 400, 938 P.2d 2].)")
15Newport Beach criminal defense attorney Zachary McCready defends clients throughout Orange County, including Fullerton, Anaheim, Newport Beach, Santa Ana, Irvine and Westminster.