a JBLaw so angry prosecutorial argument primer

That feeling when a prosecutor commits so much misconduct your brief is a primer for lawyers on prosecutorial misconduct. I want to highlight this really good issue that I posted about re arguing that the circumstantial evidence instruction means jurors should convict if client’s version is “unreasonable” is improper. Enjoy.

Manipulation of the circumstantial evidence instruction

A prosecutor may not misstate the law in an attempt to absolve himself from his obligation to overcome reasonable doubt on all elements. (​Centenosupra, 60 Cal.4th at pp. 666– 673​.) A prosecutor may not tell jurors that they have a duty to convict a defendant if they do not tie that argument to the duty to the proof beyond a reasonable doubt standard. (​United States v. Sanchez (9th Cir. 1999) 176 F.3d 1214, 1224–1225​.)

For example, in ​Centenosupra, 60 Cal.4th at page 671​, the prosecutor argued: “[w]hat you are looking at when you are looking at reasonable doubt is you are looking at a world of possibilities. There is the impossible, which you must reject, the impossible [sic ] but unreasonable, which you must also reject, and the reasonable possibilities, and your decision has to be in the middle. It has to be based on reason. It has to be a reasonable account.” (​Id. at pp. 665–666​.) The California Supreme Court held this was improper because what is “reasonable” is “only the beginning.” After jurors set aside the unreasonable, they still “must be convinced that all necessary facts have been proven beyond a reasonable doubt.” Thus, “[i]t is not sufficient that the jury simply believe that a conclusion is reasonable. It must be convinced that all necessary facts have been proven beyond a reasonable doubt. (Id. at p. 674.)

In ​People v. Ellisonsupra, 196 Cal.App.4th at pages 1351-1353​ , the appellate court held that the prosecutor misstated the reasonable doubt standard when she argued: “[y]ou’ve got to look at what’s reasonable and what’s unreasonable[.]”. (​Id. at p. 1351​.) When she explained the circumstantial evidence instruction, she described the evidence in the case, provided an inference pointing to innocence, and then deemed the inference. (​Ibid.​) She told jurors: “look at whether or not it’s reasonable or unreasonable for the defendant to be innocent.” (​Ibid.​) The Court held that tell jurors they are to determine whether an inference pointing to innocence is reasonable is a misstatement of the burden of proof. (​Id. at p. 1353​.)

–>In my case the Da argued over and over:  “accept the reasonable reject the unreasonable”. This is improper because it implies that the jury is required to convict as long as they think the only inferences pointing to innocence were unreasonable. (See, also ​Hillsupra, 17 Cal.4th at p. 831​ [misconduct to argue “there has to be some evidence on which to base a doubt”].)

Appeal to passions/extrajudicial proceedings

It is improper for a prosecutor to seek a conviction for a greater societal “purpose”. (See, e.g. ​People v. Adams (1939) 14 Cal.2d 154, 161–162​ [“render a verdict such as you will be proud of” misconduct]; ​People v. Mendoza (1974) 37 Cal.App.3d 717, 727​ [“take Mr. Mendoza off the streets” misconduct]; ​People v. Talle (1952) 111 Cal.App.2d 650, 673–678​ [ “avenge the cruel death of an innocent girl” misconduct]; ​United States v. Weatherspoon (9th Cir. 2005) 410 F.3d 1142, 1149​ [conviction will “”make you comfortable knowing there’s not convicted felons on the street with loaded handguns” misconduct]; ​United States v. Solivan (6th Cir. 1991) 937 F.2d 1146, 1153​ [references to “war on drugs” improper].)

It is also improper to reference parts of judicial process separate from the trial. (​People v. Whitehead (1948) 148 Cal.App.2d 701, 706​ [improper reference to holding order]; ​People v. Hale (1947) 82 Cal.App.2d 827, 832–833​ [improper reference to grand jury decision].)

This is misconduct for reasons best explained by our federal courts:

A prosecutor may not urge jurors to convict a criminal defendant in order to protect community values . . . [t]he evil lurking in such prosecutorial appeals is that the defendant will be convicted for reasons wholly irrelevant to his own guilt or innocence. Jurors may be persuaded by such appeals to believe that, by convicting a defendant, they will assist in the solution of some pressing social problem. The amelioration of society’s woes is far too heavy a burden for the individual criminal defendant to bear.

(​United States v. Weatherspoonsupra, 410 F.3d at p. 1149​, internal quotation marks omitted.)

It is an improper appeal to the passions of jurors to single them out during closing. (See, e.g. ​People v. Wein (1958) 50 Cal.2d 383, 395–396​.) It is also improper to quote juror statements from voir dire during closing argument. (​People v. Riggs (2008) 44 Cal.4th 248, 324–326​; ​People v. Freeman (1994) 8 Cal.4th 450, 517​.)

Appeals to racial stereotypes:

(​Kelly v. Stone (9th Cir. 1975) 514 F.2d 18, 19​ [prosecutor’s argument that “maybe the next time it won’t be a little black girl from the other side of the tracks; maybe it will be somebody that you know” was “highly inflammatory and wholly impermissible”].) Neither can a prosecutor reference racial stereotypes in an effort to support his claims. ​People v. Simonsupra, 80 Cal.App. at pp. 677–686​ [relying on stereotypes about Jews]; ​United States v. Cabrera (9th Cir. 2000) 222 F.3d 590, 596​ [stereotyping Cubans].) Also–>

(​CALCRIM No. 200​ [“[y]ou must not let bias [or]. . . prejudice . . . influence your assessment of the evidence or your decision. Many people have assumptions and biases about or stereotypes of other people and may be unaware of them. You must not be biased in favor of or against any . . . witness . . . because of his . . . nationality, national origin, race or ethnicity[.]”].) It is a violation of the California State Bar Rules of Professional Conduct to resort to racial stereotypes or biases to gain an advantage in a proceeding. (​Cal. Rules of Prof. Responsibility, Rule 8.4.1​.)

It is improper for a prosecutor to recount personal anecdotes about his life not only because it is an appeal to the jury’s passions but also because these anecdotes are not in evidence. (See, e.g. ​People v. Mendoza (2007) 42 Cal.4th 686, 704​ [anecdote about trial experience]; ​People v. Velez (1983) 144 Cal.App.3d 558, 569–570​ [anecdotes about military experience ].) It is also improper to make an irrelevant analogy meant to invoke sympathy or an emotional response from jurors. (See, e.g. ​People v. Zurinaga (2007) 148 Cal.App.4th 1248, 1255​ [improper analogy to 9/11].)


It is misconduct for a prosecutor to vouch for the quality of the evidence, for the veracity of any witness, or to imply that the jury should trust that certain evidence is reliable because the prosecutor has personal knowledge of facts that the jury does not have. (See ​Cal. Bar Rules Prof. Conduct, rule 5–200(E)​; ​People v. Anderson (1990) 52 Cal.3d 453, 479​; ​People v. Turner (2004) 34 Cal.4th 406, 432–433​.) It is also improper for a prosecutor to use the prestige of a government office to vouch for the credibility of a witness or strength of evidence. (​People v. Alvarado (2006) 141 Cal.App.4th 1577, 1582–1586​; ​United States v. Necoechea (9th Cir. 1993) 986 F.2d 1273, 1276​; ​United States v. Ruiz (9th Cir. 2013) 710 F.3d 1077, 1085–1086​.) A prosecutor cannot indicate that information not presented to the jury supports the witness’s testimony. (​United States v. Hermanek (9th Cir. 2002) 289 F.3d 1076, 1098​.)

 ​People v. Hugginssupra, 38 Cal.4th at p. 207​ [improper to compare case to others]; see also ​People v. Bandhauer (1967) 66 Cal.2d 524, 529​ [reversible misconduct to argue that defendant was the most “depraved” person he had seen in his “many years” as a prosecutor]

People v. Woods
supra, 146 Cal.App.4th at p. 113​. In Woods, the prosecutor rebutted the defense’s argument that an officer was lying by arguing that the defense was “obligated” to support that claim. The prosecutor then argued that “‘in this day and age” such evidence would exist such that the defense would have presented it if it did. The appellate court held this was improper vouching because: “reasonable jurors could only understand the argument to mean that the prosecutor had actual knowledge that [the arresting officer] had never engaged in misconduct.” 

Shifting burden of proof/Griffin/Doyle

A prosecutor is prohibited from commenting on the accused’s silence during closing argument. (​Griffin v. Californiasupra, 380 U.S. at p. 615​; ​U.S. Const., 5th Amend.​.) Although a prosecutor may comment on the failure of the defense to call logical witnesses, the prosecutor may not comment on that lack of evidence from the defense if the only person who could have provided that evidence was the defendant. (See, e.g. ​People v. Medina (1974) 41 Cal.App.3d 438, 457–458​.)

Additionally, the prosecutor has the burden of proof in a criminal trial. A prosecutor may not argue or imply that a defendant has the duty to prove his innocence. (See, e.g. ​Hillsupra, 17 Cal.4th at pp. 831–832​.)

It is improper to imply that the defendant is responsible for calling witnesses to raise a doubt about his guilt. (See, e.g. ​People v. Woodssupra, 146 Cal.App.4th at pp. 112–114​ [improper to tell jurors that defense was obligated to call witnesses to support his aspersions on prosecution witness’s credibility].)

People v. Sanchez (2014) 228 Cal.App.4th 1517, 1528​ [may not argue jury can infer guilt from defendant’s failure to confess].) Prosecutors may violate this rule in different ways. For example, it is misconduct to comment on a defendant’s post-arrest silence. (​Doyle v. Ohio (1976) 426 U.S. 610​.) It is misconduct to comment on the defendant’s failure to testify. (​Griffinsupra, 380 U.S. at p. 615​.)

People v. Sanchezsupra, 228 Cal.App.4th 1517​, is instructive. In that case, the prosecutor told jurors that the defendant “never acknowledged his guilt” and argued “so he’s still hiding, he doesn’t acknowledge his guilt.” (​Id. at p. 1523​) The trial court found this argument got “closer” to an improper comment on the defendant’s right to remain silent. (​Id at p. 1528, fn.2​.) The appellate court agreed. (​Ibid.​.)

Commenting on missing evidence from the defense that the prosecutor successfully excluded

A prosecutor may not comment on the lack of that defense evidence that he successfully excluded. (See ​People v. Varona (1983) 143 Cal.App.3d 566​; ​People v. Castain (1981) 122 Cal.App.3d 138​; ​People v. Hernandez (1977) 70 Cal.App.3d 271, 279–280​.) 

People v. Frohner (1976) 65 Cal.App.3d 94​, is instructive. In Frohner, The prosecutor argued during closing that the defendant could have subpoenaed an informant if he wanted him to testify, despite knowing that the defense was unable to serve the witness with a subpoena. (​Id. at p. 108​.) The appellate court held this was improper because the argument suggested that the defendant chose not to call the witness to testify, which the prosecutor knew was untrue. (​Id. at pp. 108–110​.)

Overall atmosphere eroding the integrity of the process

The California Supreme Court holds that “[i]t takes no citation of authority” to conclude that “juvenile courtroom behavior by a public prosecutor demeans the office, distracts the jury, prejudices the defense, and demands censure.” (​Hillsupra, 17 Cal.4th at p. 834​; see also ​People v. Friendsupra, 47 Cal.4th at pp. 30–32​; see also ​People v. Hudsonsupra, 126 Cal.App.3d at p. 735​ [defendant denied due process where prosecutor resorted to “inflammatory rhetoric” and “vulgar forms of argumentative questions”]; ​People v. Villasupra, 109 Cal.App.3d at p. 362​ [misconduct where prosecutor “acted unprofessionally, indeed childishly, on several occasions at trial.”)

Facts not in evidence

It is misconduct for the prosecutor to state facts not in evidence or to imply the existence of evidence known to the prosecutor but not to the jury. (​People v. Kirkes (1952) 39 Cal.2d 719, 724​.) “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.” (​People v. Boltonsupra, 23 Cal.3d at p. 213​; ​People v. Frye (1998) 18 Cal.4th 894, 976–977​.) As such, it is “a highly prejudicial form of misconduct” and “a frequent basis of reversal.” (​People v. Hall (2000) 82 Cal.App.4th 813, 818​.) It is misconduct to suggest during closing that there was evidence which could have been presented, but was not, to save the jurors’ time. (​People v. Boyette (2002) 29 Cal.4th 381, 452​.) Likewise, a prosecutor cannot tell the jury that a witness was not called because the testimony would have been cumulative. (​People v. Harris (1989) 47 Cal.3d 1047, 1084​; ​People v. Hallsupra, at p. 817​.) It is also misconduct to explain why a witness did not testify or what the testimony would have been. (​People v. Gainessupra, 54 Cal.App.4th at p. 822​.)

Telling jurors what witnesses, who never testified, would have said “in the guise of closing argument” also violates a defendant’s ​Sixth Amendment​ rights to confrontation and cross-examination. (​People v. Gainessupra, 54 Cal.App.4th at p. 825​, citing ​People v. Harrissupra, 47 Cal.3d at p. 1083​; ​People v. Boltonsupra, 23 Cal.3d at p. 215, fn. 4​ [“The prosecutor, serving as his own unsworn witness, is beyond the reach of cross-examination.”].) 

 ​People v. Montes (2014) 58 Cal.4th 809, 870​ [prosecutorial misconduct to tell jurors that disposition of criminal case against a prosecution witness would have resolved the same, regardless of whether the witness testified for the prosecution].)

Published by Jenny Brandt

About Me: sociology, african american studies, chicano/a studies, critical race studies, and criminal law scholar. public school kid from kindergarten-J.D. Former public defender. I am a post-conviction guru. Appeals. Sentencing. Withdraw Pleas. Habeas. Published author in the Criminal Law Bulletin and California Defender. "I do it for the joy it brings, because I'm a joyful girl, because the world owes me nothing, and we owe each other the world." Why I started JJC: My PD buddy suggested it. What and who JJC is inspired by: public defenders I have worked for, with, and next to. my clients who have battled things no one should and are still here. innocence and guilt and everything in between. My coworkers, who fight just as hard as the PDs I love, for many of the same reasons. My husband who was once voted "most Christ like" (every Jewish girl's dream). My Corgi who loves everyone. The constitution. Tabloids. My mom, for giving me a voice. My dad, for teaching me what to say. My brother, for teaching me how to say it.

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