Prosecutorial Misconduct on Appeal
What is Prosecutorial misconduct?
rosecutorial misconduct refers to actions by a prosecutor that violate ethical or legal rules intended to ensure a fair trial for the defendant. For such misconduct to be actionable, it must either cause significant unfairness to the trial, resulting in a denial of due process, or involve the use of deceptive or reprehensible methods to sway the court or jury.
Examples of prosecutorial misconduct include:
Failure to disclose exculpatory evidence: Often termed as “Brady violation,” this occurs when the prosecutor does not reveal evidence that could prove the defendant's innocence or establish reasonable doubt about their guilt.
Introducing false evidence: This involves presenting fabricated evidence or overstating scientific evidence as conclusive when there are uncertainties.
Coaching: A prosecutor can prepare a witness but cannot direct the testimony in a manner that misleads the jury and hides weaknesses with the purpose of obtaining an improper conviction.
Making improper arguments: This includes arguments not based on presented evidence or misstatements of the law, such as appeals to racial prejudice.
Discriminating in jury selection: Excluding potential jurors based on their category (like race or gender) rather than their beliefs or character.
How is Prosecutorial Misconduct Raised?
Prosecutorial misconduct has to be raised at or before trial so that the court has an opportunity to fix the problem. The exception is only when the misconduct was unknown until after conviction . Here is an example of a case which was lost because the misconduct was not timely raised and also because even if it was timely raised it would not have affected the outcome.
In a post conviction appeal, a criminal defense attorney from Oakland, Ca. (Robert Beles) filed an appeal asking for a reversal of a conviction of first degree murder, being a felon in possession of a firearm, and attempting to dissuade a witness. The case involved defendant Roosevelt Vines Jr. shot and killed Mario Thomas at the site of a “memorial” to one of defendant's friends who had been shot the preceding day. One of the issues raised by Beles as the appeals lawyer was prosecutorial misconduct at trial.
The basic law on prosecutorial misconduct during trial is that “[A] defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion—and on the same ground—the defendant made an assignment of misconduct and requested that the jury be admonished to disregard impropriety.” (People v. Pearson (2013) 56 Cal.4th 393, 426.) “Where the defendant does not contemporaneously object to alleged misconduct, we generally decline to review the claim on appeal unless a timely admonition could not have cured the harm.” (People v. Rivera, (2019) 7 Cal.5th 306, 334.)
In this case the argument was made that trial counsel was ineffective due to the defense attorney’s failure to object. However, IAC claims (Ineffective Assistance of Counsel) are difficult to make. The rule is that “a defendant must demonstrate counsel's failure to object lacked any “rational tactical purpose” and but for counsel's lack of objection, there is a reasonable probability the result would have been different. (People v. Mesa (2006) 144 Cal.App.4th 1000, 1007–1009.)
There need not be affirmative assent by the criminal defense attorney to the misconduct. Tactical decisions not to object are common at trial. A lawyer may not believe the issue is significant even though in retrospect and on appeal it may seem that an objection was warranted. A lawyer may not wish to focus the jury on the issue brought to the forefront by the misconduct or the criminal defense lawyer may consider the prosecutorial misconduct as a tactical gift which opens the door to refutation by evidence which may not otherwise have been admissible at trial.
The general rule about misconduct is that “A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such “unfairness as to make the resulting conviction a denial of due process.” People v. Rivera (2019) 7 Cal.5th 306, 333–334
“When a claim of misconduct is based on the prosecutor's comments 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.” However, even if there is Prosecutorial misconduct there can not be a reversal under state law unless there was a “reasonable likelihood of a more favorable verdict in the absence of the challenged conduct” and under federal law if the misconduct was not ‘harmless beyond a reasonable doubt.’ ” (People v. Rivera (2019) 7 Cal.5th 306, 333–334.)