Prosecutorial Misconduct in California


  1. the prosecutor at your California criminal jury trial behaved improperly (this is known as “prosecutorial misconduct”), AND
  2. this prosecutorial misconduct affected the outcome of your case,

then you may be able to get your guilty verdict overturned.1

Specifically, you may be able to prevail on a motion for a new trial—which would make your earlier conviction void, and allow you to start the trial process all over again.2

But this is not an easy result to obtain. The prosecutor's behavior has to meet the legal definition of prosecutorial misconduct. You have to be able to show that the result in the case would have been different without his/her misconduct.3

And, in most cases, your attorney needs to have objected to the prosecutorial misconduct when it occurred.4 (But if s/he did not, you may be able to challenge your conviction on grounds of ineffective assistance of counsel.5)

Types of prosecutorial misconduct

Common forms of prosecutorial misconduct include:

  • Asserting or referring to facts that haven't been proven in the trial,
  • Referring to inadmissible evidence,
  • Commenting on the defendant's choice not to testify at his/her own trial,
  • Expressing personal opinions about the defendant's guilt,
  • Making inflammatory statements designed to appeal to the passions of the jury, and
  • Withholding evidence that would have helped the defense case (Brady violations).

Example: Freddie is accused of killing a police officer and is on trial for special circumstances murder.

The prosecution calls the dead officer's partner, Phil, to the stand. Phil is wearing the same bloodstained uniform he was wearing when the officer was killed. Phil proceeds to weep on the stand. During closing arguments, the prosecutor reminds the jury of Phil's dramatic testimony. Freddie's lawyer objects to this inflammatory conduct—but the objection is overruled.

The prosecutor's behavior amounted to prosecutorial misconduct, because he appealed to the passions of the jury in an inappropriate way. Freddie is entitled to a new trial.6

In order to help you better understand prosecutorial misconduct in California, our California criminal defense attorneys will address the following:

If, after reading this article, you would like more information, we invite you to contact us at Shouse Law Group.

1. Legal Definition of Prosecutorial Misconduct in California

The legal definition of prosecutorial misconduct is any improper or illegal act by a prosecutor—with the goal of persuading the jury to wrongly convict a defendant or impose an unjustified punishment.8

Prosecutorial misconduct can take place at any point during the California criminal court process—not just during the jury trial, but also during pretrial proceedings or sentencing hearings.

close up of the scales of justice
Prosecutors may not use their position of power to "rig the scales of justice."

The idea behind the concept of prosecutorial misconduct is that prosecutors represent the people of a state. Thus, they need to behave in a way that is in keeping with the dignity and prestige of their position. While most lawyers can resort to “low blows” in order to be the best possible advocate for their client, prosecutors are held to a higher standard.9

Some of the major types of prosecutorial misconduct include:

1.1. Asserting facts not in evidence

In criminal jury trials, both sides are required to offer evidence in support of any facts they wish to assert. If a prosecutor tries to make reference to a fact that hasn't been proven—then this may be considered misconduct.10

Example: Shawn is on trial for a violent PC 211 - robbery. In her closing remarks at his trial, Ruth, the prosecutor, tells the jury that violent crime has declined significantly in the area where the robbery occurred since Shawn was locked up.

Ruth has not introduced any evidence at the trial to support the statement that crime has declined in that area. Therefore, she has committed prosecutorial misconduct by referring to that fact in her argument.11

But it can be hard to get a guilty verdict overturned based on this type of prosecutorial misconduct. The reason is that judges often think that the misconduct probably didn't matter—because the jury could have seen for themselves that the prosecutor's statement was not supported by evidence.12

Thus, the reasonable assumption is that the jury didn't take the statement too seriously, and the misconduct didn't matter to the outcome of the case.13

As a result, you have the best shot at showing prosecutorial misconduct on these grounds if the prosecutor repeatedly made statements that weren't supported by the evidence—or referred to a single unsupported statement again and again.14

1.2. Putting forth inadmissible evidence

It is prosecutorial misconduct to introduce evidence that is inadmissible.15

Evidence that is not admissible in a California jury trial includes things like:

  • Hearsay (out-of-court statements introduced for their truth),16
  • Character evidence,17 and
  • Results of polygraph tests.18 

Any prosecutor worth their salt knows that these types of evidence are not admissible and so won't try to present them directly. But s/he may find a way to sneak in this evidence indirectly—for example, by referring to it while examining or cross-examining a witness.19

Example: James is on trial for robbery. He has a criminal record—but that fact isn't admissible in his current trial.

The prosecutor in James' case questions a police officer who is a witness. The prosecutor's questioning leads the officer to refer to a conversation with James in which James said he didn't want to get “sent back” to prison. This indirectly lets the jury know that James has been in prison before.

This reference to inadmissible evidence is prosecutorial misconduct—and James is entitled to a new trial.20

1.3. Commenting on the defendant's failure to testify

Under the U.S. Constitution, you have the right not to testify at your own criminal trial.21 If the prosecutor comments on your choice not to testify, s/he has committed prosecutorial misconduct.22

Witness swear in
You have the right not to testify at your own trial.

This is because—by commenting on your failure to testify—the prosecutor may be hinting that you have something to hide. This, in turn, violates your constitutional right to choose not to testify.23

1.4. Expressing personal opinions

In some cases, a prosecutor may commit misconduct by expressing his/her personal opinion about an element of the trial.24

This form of prosecutorial misconduct is tricky to pin down—because not every expression of a prosecutor's personal opinion is misconduct.25

For example, it is okay for a prosecutor to say that s/he believes the defendant is guilty. It is also okay for him/her to express an opinion about the credibility of a defense witness—if that opinion is based on actual evidence at trial.26

The general rule is that a prosecutor may express his/her personal opinion if that opinion has some basis in the evidence presented. But if it is unfounded and based on nothing, it may be prosecutorial misconduct to express it.27

Example: Ramona is on trial for 459 PC - burglary. Her case depends on an alibi legal defense: her friend Stacy will testify that Ramona was with her on the night the crime took place.

At Ramona's trial, the prosecuting attorney says that he has reason to believe that Stacy is a liar. But he doesn't produce any concrete evidence that this is true. This expression of his opinion is prosecutorial misconduct—and Ramona's attorney should object to it when it takes place.

1.5. Inflammatory comments

a jury box filled with jurors
Inflammatory or dramatic comments that appeal to the passions of the jury can also rise to the level of prosecutorial misconduct

Inflammatory or dramatic comments that appeal to the passions of the jury can also rise to the level of prosecutorial misconduct.28

For example, it is prosecutorial misconduct to ask the jury to try to imagine how the victim felt when the crime was committed.29

1.6. Withholding evidence favorable to the accused

One of the most potentially damaging forms of misconduct by prosecutors is withholding evidence that would have helped the defense case.30 Suppressing evidence that is materially relevant to the defendant's guilt or punishment is a violation of his/her constitutional rights.31

Example: Tom is on trial for robbery and murder. His defense is mistaken eyewitness identification. He is found guilty.

It turns out that the prosecutor knew that one eyewitness had eliminated Tom as the man he saw in the vicinity of the crime scene. But the prosecutor had not disclosed this fact to Tom or his lawyers. This is serious prosecutorial misconduct and justifies a reversal of Tom's guilty verdict.32

2. Necessity of Prejudice from Prosecutorial Misconduct

Even if one of the forms of prosecutor's misconduct discussed above occurred in your case, you will not necessarily be entitled to a new trial. You also need to show that the misconduct resulted in prejudice—in other words, that it materially affected the outcome of your trial.33

There are several reasons why the court could conclude that the prosecutorial misconduct did not result in prejudice.

First, and most common, your attorney may have objected to the misconduct at your trial—and the judge may have then instructed the jury to disregard the improper comment, action, testimony, etc.34

Example: Anthony is on trial for Penal Code 288 PC lewd acts with a child. The prosecutor in his trial inappropriately refers in his argument to multiple hearsay statements by children who are witnesses for the prosecution. This is prosecutorial misconduct.

However, after each such statement, Anthony's lawyer objects. The judge then tells the jury to disregard the prosecutor's reference to the hearsay statement. Because of this, Anthony is not entitled to have his guilty verdict overturned because of the prosecutor's misconduct.35

Or it might be the case that the prosecutorial misconduct didn't matter because the evidence against you was so overwhelming that the outcome would have been the same without it.36

3. Necessity of Objection to Prosecutorial Misconduct at Trial

In most cases, you can't challenge your guilty verdict on grounds of prosecutorial misconduct unless your lawyer objected to the misconduct when it occurred.37

The theory behind this rule is that—if your lawyer had objected—the judge could have instructed the jury to disregard the improper statement by the prosecutor. This would have solved the problem without creating a need for a whole new trial.38

According to Los Angeles criminal defense attorney Neil Shouse39:

“Of course, you also can't get your guilty verdict overturned if the judge admonished the jury to disregard the prosecutor's misconduct. So what this means in practice is that it may be very difficult to get a new trial based on prosecutorial misconduct—UNLESS your lawyer objected to the misconduct but the judge overruled the objection, OR the misconduct was so damaging to your case that an instruction to the jury to disregard it wouldn't have done any good.”

If your lawyer failed to object to outrageous prosecutorial misconduct, you may not be entirely out of luck. In that case, you may be able to challenge your verdict on the grounds that you received ineffective assistance of counsel.40

4. California Remedies for a Prosecutor's Misconduct

The way to raise an argument of prosecutorial misconduct is through a California motion for a new trial.41

You and your attorney must bring the motion for a new trial before your sentencing (or the judge's grant of probation, or your commitment as an addict or insane person, if that was the outcome of your case).42

Other common issues that are usually addressed in a motion for a new trial, besides prosecutorial misconduct, include:

  • Jury misconduct ,
  • Ineffective assistance of counsel,
  • Error of law by the judge,
  • Insufficient evidence, or
  • The discovery of new evidence.43

Call us for help…

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Call us for help at (855) LAW-FIRM

If you or loved one is in need of help with prosecutorial misconduct and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

To learn about Nevada laws on prosecutorial misconduct, please see our page on prosecutorial misconduct in Nevada. For cases in Colorado, please see our article on Colorado law as to prosecutorial misconduct

Legal References:

    1. Penal Code 1181 PC – 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 [prosecutorial misconduct] during the trial thereof before a jury; . . . .”)

    2. See same.

    3. People v. Prysock (1982) 127 Cal.App.3d 972, 998. (“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.”)

    4. People v. Lopez (2007) 42 Cal.4th 970, 971-72. (“As mentioned earlier, defense counsel did not object at trial to the comment, thus forfeiting on appeal a claim of prosecutorial misconduct. Reversal of defendant's conviction would be warranted only if counsel's failure to object violated defendant's constitutional right to the effective assistance of counsel.”)

    5. See same.

    6. Loosely based on People v. Fuiava (2012) 53 Cal.4th 622.

    7. Our California criminal defense attorneys 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.

    8. Black's Law Dictionary (9th ed. 2009), prosecutorial misconduct. (“A prosecutor's improper or illegal act (or failure to act), esp. involving an attempt to avoid required disclosure or to persuade the jury to wrongly convict a defendant or assess an unjustified punishment.”)

    9. See People v. Talle (1952) 111 Cal.App.2d 650, 677. (“The argument of the district attorney, particularly his closing argument, comes from an official representative of the People. As such, it does, and it should, carry great weight. It must, therefore, be reasonably objective. It is no answer to state that defense counsel also used questionable tactics during the trial and therefore the district attorney was entitled to retaliate. Defense counsel and the prosecuting officials do not stand as equals before the jury. Defense counsel are known to be advocates for the defense. The prosecuting attorneys are government officials and clothed with the dignity and prestige of their office. What they say to the jury is necessarily weighted with that prestige. It is their duty to see to it that those accused of crime are afforded a fair trial [if they do not, they have committed prosecutorial misconduct].”)

    10. People v. Hill (1998) 17 Cal.4th 800, 827-28. (“Defendant next argues Morton committed [prosecutorial] misconduct when, in closing argument, she referred to facts not in evidence. (10) We have explained that such practice is “clearly ... misconduct” ( People v. Pinholster (1992) 1 Cal.4th 865, 948 [4 Cal.Rptr.2d 765, 824 P.2d 571]), because such statements “tend[] to make the prosecutor his own witness-offering unsworn testimony not subject to cross-examination. It has been recognized that such testimony, 'although worthless as a matter of law, can be ”dynamite“ to the jury because of the special regard the jury has for the prosecutor, thereby effectively circumventing the rules of evidence.' [Citations.]” ( Bolton, supra, 23 Cal.3d at p. 213; People v. Benson, supra, 52 Cal.3d at p. 794 [“a prosecutor may not go beyond the evidence in his argument to the jury”]; People v. Miranda (1987) 44 Cal.3d 57, 108 [241 Cal.Rptr. 594, 744 P.2d 1127]; People v. Kirkes (1952) 39 Cal.2d 719, 724 [249 P.2d 1].) “Statements of supposed facts not in evidence ... are a highly prejudicial form of [prosecutorial] misconduct, and a frequent basis for reversal.””)

    11. Based on the facts of the same.

    12. See People v. Harris (1989) 47 Cal.3d 1047, 1080. (“Even were we to agree with defendant that the statement was error rising to the level of [prosecutorial] misconduct as a statement regarding inadmissible evidence that the prosecutor knew would not be introduced, it was not prejudicial. The rule is well established, that prosecutorial misconduct in an opening statement is not grounds for reversal of the judgment on appeal unless the misconduct was prejudicial or the conduct of the prosecutor so egregious as to deny the defendant a fair trial. (See People v. Purvis (1963) 60 Cal.2d 323, 346 [33 Cal.Rptr. 104, 384 P.2d 424]; People v. Lyons (1956) 47 Cal.2d 311, 318-319 [303 P.2d 329].) Nothing in the record supports a conclusion that this isolated statement was made with knowledge that it was improper or for an improper purpose. Even assuming misconduct, however, it was not of a nature that requires reversal to protect defendant's right to a fair trial.”)

    13. See same.

    14. People v. Carr (1958) 163 Cal.App.2d 568, 575. (“Whereas in the case at bar the unwarranted statement might not alone have prejudiced the defendants, the cumulative effect on the jury of this and other unjustified comments of the deputy district attorney [prosecutorial misconduct] justifies a contrary conclusion particularly in view of the state of the evidence.”)

    15. People v. Aragon (1957) 154 Cal.App.2d 646, 658. (“We believe that the prosecution should not be permitted to introduce into evidence by indirection what would be highly improper if done directly [this would be prosecutorial misconduct].”)

    16. Evidence Code 1200 EC – Hearsay rule [violating this is prosecutorial misconduct]. (“(a) "Hearsay evidence" is evidence of a statement that was made other than by a witness while testifying at the hearing and that is offered to prove the truth of the matter stated. (b) Except as provided by law, hearsay evidence is inadmissible.”)

    17. Evidence Code 1101 EC – Character evidence rule [violating this can be prosecutorial misconduct]. (“(a) Except as provided in this section and in Sections 1102, 1103, 1108, and 1109, evidence of a person's character or a trait of his or her character (whether in the form of an opinion, evidence of reputation, or evidence of specific instances of his or her conduct) is inadmissible when offered to prove his or her conduct on a specified occasion.”)

    18. People v. Aragon, endnote 15, above, at 658. (“It may well be that the lie detector test is of use in the field of criminal investigations and for some other purposes, but we know of no appellate decision sustaining its use in the trial of a criminal case in the absence of a stipulation [and so using it may be prosecutorial misconduct].”)

    19. See, e.g., People v. Aragon, endnote 15, above.

    20. Based on People v. Cabrellis (1967) 251 Cal.App.2d 681.

    21. Griffin v. California (1965) 380 U.S. 609.

    22. People v. Vargas (1973) 9 Cal.3d 470, 475. (“Under the rule in Griffin v. California, supra, 380 U.S. 609, error [prosecutorial misconduct] is committed whenever the prosecutor or the court comments upon defendant's failure to testify.”)

    23. See same.

    24. People v. Conover (1966) 243 Cal.App.2d 38, 46. (“Initially, the statements were improper [prosecutorial misconduct] because in their general tenor they were expressions of the prosecutor's personal belief in the unreliability of the defense witness Hundley.”)

    25. People v Prysock, endnote 3, above, at 997. (“It is “within the domain of legitimate argument [and thus not prosecutorial misconduct] for a prosecutor to state his deductions or conclusions drawn from the evidence adduced at trial, and, more particularly, to relate to the jury that, in his opinion, the evidence shows that the defendant is guilty of the crime charged.” (People v. Dillinger (1968) 268 Cal.App.2d 140, 144 [73 Cal.Rptr. 720].) He may also comment on the credibility of a witness in light of all the evidence presented.”)

    26. See same.

    27. See same. (“Most of the statements made, when taken in context, relate to the evidence, or inferences reasonably arguable from the evidence [and so are not prosecutorial misconduct]. While statements relating to the brutal and nauseating nature of the crime were overstated and unnecessary, they are not susceptible to an inference that the prosecutor's opinion was based on information other than evidence adduced at trial.”)

    28. See People v. Stansbury (1993) 4 Cal.4th 1017, 1057.

    29. See same. (“We have settled that an appeal to the jury to view the crime through the eyes of the victim is [prosecutorial] misconduct at the guilt phase of trial; an appeal for sympathy for the victim is out of place during an objective determination of guilt.”)

    30. See Merrill v. Sup. Ct. (1994) 27 Cal.App.4th 1586, 1593. (“If the information withheld from the defense was substantial and material [and thus prosecutorial misconduct], then the appropriate remedy must be crafted.”)

    31. Brady v. Maryland (1963) 373 U.S. 83, 87. (“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process [and thus amounts to a prosecutor's misconduct] where the evidence is material either to guilt or to punishment . . .”)

    32. Based on the facts of Merrill v. Sup. Ct., endnote 30, above.

    33. People v. Prysock, endnote 3, above, at 998. (“Respondent contends and we agree that if the remark constituted [prosecutorial] misconduct, the prompt admonishment cured any harm. Even if we should find the statement to have been misconduct, the test of prejudice is whether it is “reasonably probable that a result more favorable to the defendant would have occurred had the district attorney refrained from the comment  attacked by the defendant. [Citations.]”)

    34. People v. Dontanville (1970) 10 Cal.App.3d 783, 795.

    35. Based on the facts of the same.

    36. See People v. Prysock, endnote 33, above.

    37. People 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.”)

    38. People v. Prysock, endnote 3, above, at 996-97. (“Importantly, none of the cited statements elicited an objection below. (No. 5 in fn. 16, ante, was not an objection but a request for clarification.) Therefore People v. Green (1980) 27 Cal.3d 1, 34 [164 Cal.Rptr. 1, 609 P.2d 468], precludes raising this issue for the first time on appeal, since a timely admonition would have “cured” any harm from the statements if they were even deemed to constitute [prosecutor's] misconduct.””)

    39. Our Los Angeles criminal defense attorneys have conducted dozens of jury trials and juvenile adjudication hearings, defending everything from sex crimes to California firearms cases.

    40. People v. Lopez, endnote 4, above.

    41. Penal Code 1181 PC – Motion for a new trial [on grounds of prosecutorial misconduct], endnote 1, above.

    42. Penal Code 1182 PC – Application; time; entry of order. ("The application for a new trial [based on prosecutorial misconduct] must be made and determined before judgment, the making of an order granting probation, the commitment of a defendant for observation as a mentally disordered sex offender, or the commitment of a defendant for narcotics addiction or insanity, whichever first occurs, and the order granting or denying the application shall be immediately entered by the clerk in the minutes.")

    43. Penal Code 1181 PC – Motion for a new trial [on grounds other than prosecutorial misconduct].

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