A PRIMER ON ALLEGING PROSECUTORIAL MISCONDUCT ON APPEAL by Sandra Uribe, CCAP Staff Attorney Introduction. The Center For Public Integrity conducted a nation-wide study of alleged prosecutorial misconduct in criminal appeals from 1970 to 2003. The study revealed that there were 590 published California cases in which the defendant alleged prosecutorial misconduct. In 75 of those cases, the appellate court held a prosecutor’s conduct was prejudicial to the defendant. And in 41 cases that were not overturned, there was a dissent opining the prosecutor’s conduct warranted a reversal or a remand. According to the study, of the 75 cases in which prosecutorial misconduct was deemed prejudicial, 48 cases involved improper trial arguments or examination, 11 concerned the withholding evidence from the defense, 8 related to discrimination in jury selection, 3 involved pre-trial tactics, 2 involved threatening a witness and 3 were about the destruction of evidence, the breach of an agreement and eavesdropping. Given these numbers, prosecutorial misconduct is an area in which appellate counsel should become familiar. The purpose of this article is to provide a guide on alleging prosecutorial misconduct on appeal, as well as illustrative examples of behavior by prosecutors which has been classified as inappropriate. What is Prosecutorial Misconduct? Prosecutorial misconduct is defined as the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury. (People v. Hill (1998) 17 Cal.4th 800, 819; People v. Espinosa (1992) 3 Cal.4th 806, 820; People v. Pitts (1990) 223 Cal.App.3d 606, 691.) When alleging misconduct, a defendant need not make a showing that the prosecutor acted in bad faith. (People v. Benson (1990) 52 Cal.3d 754, 793.) The test on appeal is not prosecutorial intent, but the effect on the defendant. (People v. Vargas (2001) 91 Cal.App.4th 506.) Thus, the California Supreme Court has noted that the term “prosecutorial misconduct” is somewhat of a misnomer in that “it suggests a prosecutor must act with a culpable state of mind. A more apt description ... is prosecutorial error.” (People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1.) 1 This Resource provided by WWW.CAPCENTRAL.ORG Article Originally posted at: http://www.capcentral.org/resources/criminal/primer_ da_misconduct.aspx A prosecutor may not justify misconduct by saying that defense counsel “started it” or that he was merely responding to defense counsel's improper argument. (People v. Perry (1972) 7 Cal.3d 756, 790.) Prosecutors are held to an elevated standard of conduct to that imposed on other attorneys because of the unique function they perform in representing the interests, and in exercising the sovereign power, of the state. (People v. Kelley (1977) 75 Cal.App.3d 672, 690.) As the United States Supreme Court has noted, the prosecutor represents “a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.” (Berger v. United States (1935) 295 U.S. 78, 88 [55 S.Ct. 629, 633; 79 L.Ed. 1314, 1321].) What is the Applicable Standard of Review? The standards used to evaluate prosecutorial misconduct are well established. “A prosecutor’s … intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’” (People v. Gionis (1995) 9 Cal.4th 1196, 1214.) But even if the conduct does not render a trial fundamentally unfair, the actions may nevertheless be misconduct under state law, if they involve “the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.” (People v. Price (1991) 1 Cal.4th 324, 447.) When is the Issue Arguable on Appeal? A trial judge has no sua sponte duty to control prosecutorial misconduct in offering evidence, or otherwise, and is not obligated to intervene in the absence of an objection. (People v. Carrera (1989) 49 Cal.3d 291, 321.) Therefore, a defendant generally cannot complain on appeal of misconduct by a prosecutor at trial unless a timely objection was made, the objectionable comment was assigned as misconduct, and an admonition was requested. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Even if an objection is raised and sustained, if an admonition would have cured the harm, the issue is waived for appeal unless the defendant asks the court to admonish the jury to disregard the impropriety. (People v. Prieto (2003) 30 Cal.4th 226, 259.) An objection and/or a request for an admonition will be excused if either would have been futile. (People v. Arias (1996) 13 Cal.4th 92, 159; People v. Zambrano (2004) 124 Cal.App.4th 228, 237 [finding objection and request for admonition would have been futile].) Moreover, failure to request an admonition does not waive the issue for appeal if 2 This Resource provided by WWW.CAPCENTRAL.ORG Article Originally posted at: http://www.capcentral.org/resources/criminal/primer_ da_misconduct.aspx such admonition would not have cured the harm caused (People v. Bradford (1997) 15 Cal.4th 1229, 1333), or if the defendant had no opportunity to request an admonition because the court overruled defense counsel’s objection. (People v. Green (1980) 27 Cal.3d 1, 35, fn. 19.) “The inherent impossibility of obtaining a curative admonition in [the latter] situation has led to the rule that the failure to request the admonition does not forfeit the error.” (People v. Hall (2000) 82 Cal.App.4th 813, 817.) Finally, absent an objection and a request for admonition, claims of misconduct may be considered on appeal if: “the case is closely balanced and there is grave doubt of defendant’s guilt, and the acts of misconduct are such as to contribute materially to the verdict....” (People v. Lambert (1975) 52 Cal.App.3d 905, 908.) What to do when there are preservation problems? The more pervasive the misconduct was, the more likely it is that the appellate court will overlook the preservation problems and consider the merits, especially if defense counsel did attempt to object to the most serious instances of misconduct. (See e.g., People v. Hill, supra, 17 Cal.4th 800.) In addition, an appellate court has the discretion to consider an inadequately preserved misconduct issue. (See People v. Williams (1998) 17 Cal.4th 148, 161, fn. 6, [“An appellate court is generally not prohibited from reaching a question that has not been preserved for review by a party”].) And finally, one should consider whether the waiver problem can be resolved by showing counsel was ineffective for failing to object to the misconduct. (See e.g., People v. Anzalone (2005) 130 Cal.App.4th 146, 159 [finding on direct appeal that trial counsel was ineffective for failing to object to the prosecutor's misstatement of the law related to concept of concurrent intent]; People v. Rodrigues (1994) 8 Cal.4th 1060, 1125-26 [“we will reach the merits in response to defendant's assertion that the failure to assign misconduct constituted ineffective assistance of counsel.”]) Examples of Misconduct. This article will not discuss prosecutorial misconduct outside the courtroom because those matters are generally found outside the record on appeal and therefore need 3 This Resource provided by WWW.CAPCENTRAL.ORG Article Originally posted at: http://www.capcentral.org/resources/criminal/primer_ da_misconduct.aspx to be raised via a writ. This discussion is limited to misconduct at the evidentiary stage of the trial and during closing argument. 1. General Trial Misconduct: A. Eliciting improper evidence. A prosecutor may not knowingly or intentionally elicit testimony that is inadmissible in the present proceedings. (People v. Bonin (1988) 46 Cal.3d 659, 689, overruled on other grounds in People v. Hill, supra, 17 Cal.4th at p. 823, fn. 1 ; People v. Dagget (1990) 225 Cal.App.3d 751, 758; People v. Hudson (1981) 126 Cal.App.3d 733.) Asking clearly improper questions constitutes misconduct. (People v. Smithey (1999) 20 Cal.4th 936, 960-961.) One such example is People v. Bell (1987) 44 Cal.3d 137, in which the prosecutor stipulated the informant would not testify, and then he effectively read the informant’s statement to the jury by incorporating it into a question. Asking an expert hypothetical questions not grounded in the evidence is another example of an improper question that has been held to be misconduct. (People v. Boyette (2002) 29 Cal.4th 381, 449-451.) Asking argumentative questions that go beyond an attempt to elicit facts within the witness’ knowledge and are instead designed to engage an argument is also improper. (People v. Johnson (2003) 109 Cal.App.4th 1230, 1235-1236.) “Improper questions that violate a previous ruling by the trial court are particularly inexcusable.” (People v. Johnson (1978) 77 Cal.App.3d 866, 873-874; see also People v. Piper (1980) 103 Cal.App.3d 102, 112 [failure to comply with the trial court's order to delete references to defendant's conduct on parole from an exhibit given to the jury was misconduct, even if inadvertent]; People v. Parsons (1984) 156 Cal.App.3d 1165, 1170-1171 [prosecutor elicited evidence of defendant’s prior arrest even though trial court had already ruled such evidence inadmissible]; People v. Luparello (1986) 187 Cal.App.3d 410, 422-426 [prosecutor’s questioning violated court’s directive regarding evidence of the codefendant’s past acts]; People v. Pigage (2003) 112 Cal.App.4th 1359, 1375 [prosecutor’s “threat to defy the court's order was unprofessional and 4 This Resource provided by WWW.CAPCENTRAL.ORG Article Originally posted at: http://www.capcentral.org/resources/criminal/primer_ da_misconduct.aspx improper, and his decision to act on this threat was outrageous.”]) Additionally, prosecutors have a duty to reasonably anticipate and control witness misconduct.