fair response defense in California

2025But where as in this case the prosecutor’s reference to the defendant’s opportunity to testify is a fair response to a claim made by defendant or his counsel, . . . there is no violation of the privilege.’ [Citation.] . . . ‘ “[The] central purpose of a criminal trial is to decide the factual question of the defendant’s guilt or innocence, [citation] . . . .” [Citation.] To this end it is important that both the defendant and the prosecutor have the opportunity to meet fairly the evidence and arguments of one another.’ [Citation.] ‘It is one thing to hold . . . that the prosecutor may not trea

1997The United States of America has given him, throughout, the opportunity to explain.’ ” (Robinson, supra, 485 U.S. at p. 28 [ 108 S.Ct. at p. 867 ].) The court reasoned the comment was a fair response to defense counsel’s argument that the government had unfairly denied defendant the opportunity to explain his actions.

2015Were we nevertheless to overlook this procedural defect and address the merits, we would find error but no prejudice. “ ‘A prosecutor commits *1337 misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].” (People v. Edwards (2013) 57 Cal.4th 658, 738 [ 161 Cal.Rptr.3

2015Were we nevertheless to overlook this procedural defect and address the merits, we would find error but no prejudice. “ ‘A prosecutor commits *1337 misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].” (People v. Edwards (2013) 57 Cal.4th 658, 738 [ 161 Cal.Rptr.3

2015Were we nevertheless to overlook this procedural defect and address the merits, we would find error but no prejudice. “ ‘A prosecutor commits *1337 misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].” (People v. Edwards (2013) 57 Cal.4th 658, 738 [ 161 Cal.Rptr.3

2013“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ]; see People v. Frye (1998) 18 Cal.4th 894, 978 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ] (Frye) [a prosecutor’s argument that denigrates defense counsel “directs the jury’s attention away from the evidence and is therefore improper”].) “In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks” (People v. Young (

2021So there must be no knife.” It is of course improper for a prosecutor to attack the integrity of defense counsel, but in evaluating such claims we must determine whether the prosecutor’s remarks “were a fair response to defense counsel’s remarks.” (People v. Young (2005) 34 Cal.4th 1149, 1189 .) Viewed in their entirety and in context of the prosecutor’s rebuttal arguments on this subject, it is clear that the prosecutor’s comments were directed at undermining defense counsel’s efforts to convince the jury that, because police did not locate a knife in the area despite a thorough investigation

2013“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ]; see People v. Frye (1998) 18 Cal.4th 894, 978 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ] (Frye) [a prosecutor’s argument that denigrates defense counsel “directs the jury’s attention away from the evidence and is therefore improper”].) “In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks” (People v. Young (

2015(See, e.g., People v. Williams (1996) 46 Cal.App.4th 1767 , 1781–1782 [prosecutor’s remarks that defense counsel’s argument intended to “ ‘obscure the truth’ ” in order to “ ‘deceive,’ ‘distract’ and ‘confuse’ the jurors” properly reminded jury it should not be distracted from relevant evidence and inferences that might logically be drawn therefrom]; People v. Bell (1989) 49 Cal.3d 502, 538 [comments that defense counsel’s job is to “ ‘throw sand in your eyes’ ” and “get his man off” gives same reminder]; People v. Medina (1995) 11 Cal.4th 694, 759 [saying any experienced defense attorney can

2013The repeated warnings against being “fooled” by the imperfect self-defense theory “[r]ead in the context of [the] broader argument . . . were a fair response to defense argument . . . and reflected the prosecutor’s belief in the inadequacy of the evidence relied on by the defense.” (People v. Frye (1998) 18 Cal.4th 894, 978 , [no misconduct where the prosecutor called the defense “irresponsible,” “ludicrous,” and a “smoke screen”], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 .) “The prosecutor’s remarks . . . would be understood by the jury as an admoni

2013“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ]; see People v. Frye (1998) 18 Cal.4th 894, 978 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ] (Frye) [a prosecutor’s argument that denigrates defense counsel “directs the jury’s attention away from the evidence and is therefore improper”].) “In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks” (People v. Young (

2013“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” (People v. Hill (1998) 17 Cal.4th 800, 832 [ 72 Cal.Rptr.2d 656 , 952 P.2d 673 ]; see People v. Frye (1998) 18 Cal.4th 894, 978 [ 77 Cal.Rptr.2d 25 , 959 P.2d 183 ] (Frye) [a prosecutor’s argument that denigrates defense counsel “directs the jury’s attention away from the evidence and is therefore improper”].) “In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks” (People v. Young (

1997The broad dicta in Griffin to the effect that the Fifth Amendment ‘forbids . . . comment by the prosecution on the accused’s silence,’ 380 U.S., at 615, must be taken in the light of the facts of that case.

1997The broad dicta in Griffin to the effect that the Fifth Amendment ‘forbids . . . comment by the prosecution on the accused’s silence,’ 380 U.S., at 615, must be taken in the light of the facts of that case.

1997(Id. at p. 31 [ 108 S.Ct. at p. 868 ].) Similarly, in People v. Austin (1994) 23 Cal.App.4th 1596, 1611-1612 [ 28 Cal.Rptr.2d 885 ] (Austin), the Court of Appeal recognized the prosecution’s right to elicit evidence of the defendant’s post -Miranda silence as a fair response to the defense’s implication that the police had not afforded defendant the opportunity to make a full statement.

1997(Id. at p. 31 [ 108 S.Ct. at p. 868 ].) Similarly, in People v. Austin (1994) 23 Cal.App.4th 1596, 1611-1612 [ 28 Cal.Rptr.2d 885 ] (Austin), the Court of Appeal recognized the prosecution’s right to elicit evidence of the defendant’s post -Miranda silence as a fair response to the defense’s implication that the police had not afforded defendant the opportunity to make a full statement.

2022(People v. Alvarez (1996) 14 Cal.4th 155, 213 .) “‘“A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.” [Citations.] “In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks” [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].’ [Citation.] ‘To prevail on a claim of prosecutorial misconduct based on remarks to the jury, the defendant must show a reasonable likelih

2022Misconduct claims . . . have been rejected where the prosecutor anticipates the flaws likely to appear in counsel’s closing argument based on evidence that was introduced [citation], and where the prosecutor criticizes the defense theory of the case because it lacks evidentiary support.” (People v. Bemore, supra, at p. 846 .) “ ‘ “In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks” [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion.’ ” (People

2026That doesn’t mean that what he’s saying is reasonable.’ ” “ ‘A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion.” (People v. Edwards (2013) 57 Cal.4th 658, 738 ; see also People v. Herring (1993) 20 Cal.App.4th 1066, 1075 .) We generally agree with Tapi

2021And who better to kill Daniel Monge than the guy whose girlfriend Daniel Monge had talked trash about.” “‘A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion.” (People v. Edwards (2013) 57 Cal.4th 658, 738 .) “Improper vouching occurs when the prosecutor

2020(People v. Seumanu (2015) 61 Cal.4th 1293, 1337 .) A prosecutor may argue that defense counsel “ ‘is attempting to confuse the issues and urge[] the jury to focus on what the prosecution believes is the relevant evidence.’ ” (People v. Hillhouse (2002) 27 Cal.4th 469 , 19 502; see People v. Marquez (1992) 1 Cal.4th 553 , 575–576 [finding proper prosecutor’s argument that a “ ‘smokescreen’ ” had been “ ‘laid down [by the defense] to hide the truth’ ”].) Here, it is reasonably likely that the jury understood the prosecutor’s remarks as the court did, as a response to statements defense counsel m

2015(See, e.g., People v. Williams (1996) 46 Cal.App.4th 1767 , 1781–1782 [prosecutor’s remarks that defense counsel’s argument intended to “ ‘obscure the truth’ ” in order to “ ‘deceive,’ ‘distract’ and ‘confuse’ the jurors” properly reminded jury it should not be distracted from relevant evidence and inferences that might logically be drawn therefrom]; People v. Bell (1989) 49 Cal.3d 502, 538 [comments that defense counsel’s job is to “ ‘throw sand in your eyes’ ” and “get his man off” gives same reminder]; People v. Medina (1995) 11 Cal.4th 694, 759 [saying any experienced defense attorney can

2015Were we nevertheless to overlook this procedural defect and address the merits, we would find error but no prejudice. “ ‘A prosecutor commits *1337 misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].” (People v. Edwards (2013) 57 Cal.4th 658, 738 [ 161 Cal.Rptr.3

2015Were we nevertheless to overlook this procedural defect and address the merits, we would find error but no prejudice. “ ‘A prosecutor commits *1337 misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion [citation].” (People v. Edwards (2013) 57 Cal.4th 658, 738 [ 161 Cal.Rptr.3

2015(See, e.g., People v. Williams (1996) 46 Cal.App.4th 1767 , 1781–1782 [prosecutor’s remarks that defense counsel’s argument intended to “ ‘obscure the truth’ ” in order to “ ‘deceive,’ ‘distract’ and ‘confuse’ the jurors” properly reminded jury it should not be distracted from relevant evidence and inferences that might logically be drawn therefrom]; People v. Bell (1989) 49 Cal.3d 502, 538 [comments that defense counsel’s job is to “ ‘throw sand in your eyes’ ” and “get his man off” gives same reminder]; People v. Medina (1995) 11 Cal.4th 694, 759 [saying any experienced defense attorney can

2013The repeated warnings against being “fooled” by the imperfect self-defense theory “[r]ead in the context of [the] broader argument . . . were a fair response to defense argument . . . and reflected the prosecutor’s belief in the inadequacy of the evidence relied on by the defense.” (People v. Frye (1998) 18 Cal.4th 894, 978 , [no misconduct where the prosecutor called the defense “irresponsible,” “ludicrous,” and a “smoke screen”], disapproved on another ground in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 .) “The prosecutor’s remarks . . . would be understood by the jury as an admoni

2026That doesn’t mean that what he’s saying is reasonable.’ ” “ ‘A prosecutor commits misconduct if he or she attacks the integrity of defense counsel, or casts aspersions on defense counsel.’ [Citations.] ‘In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks’ [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion.” (People v. Edwards (2013) 57 Cal.4th 658, 738 ; see also People v. Herring (1993) 20 Cal.App.4th 1066, 1075 .) We generally agree with Tapi

2022Misconduct claims . . . have been rejected where the prosecutor anticipates the flaws likely to appear in counsel’s closing argument based on evidence that was introduced [citation], and where the prosecutor criticizes the defense theory of the case because it lacks evidentiary support.” (People v. Bemore, supra, at p. 846 .) “ ‘ “In evaluating a claim of such misconduct, we determine whether the prosecutor’s comments were a fair response to defense counsel’s remarks” [citation], and whether there is a reasonable likelihood the jury construed the remarks in an objectionable fashion.’ ” (People

2022(See People v. Zambrano (2007) 41 Cal.4th 1082, 1155 , overruled on another point in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22 [collecting cases]; see also People v. Woodruff, supra, pp. 764-766 [statements that prosecutor “ ‘would ask for sanctions’ ” and defense counsel’s comments were shameful, 27 “ ‘despicable,’ ” and “ ‘insulting’ ” were not “disparaging”].) Thus, we must conclude the prosecutor’s arguments did not rise to the level of misconduct. 3.

2015(See, e.g., People v. Williams (1996) 46 Cal.App.4th 1767 , 1781–1782 [prosecutor’s remarks that defense counsel’s argument intended to “ ‘obscure the truth’ ” in order to “ ‘deceive,’ ‘distract’ and ‘confuse’ the jurors” properly reminded jury it should not be distracted from relevant evidence and inferences that might logically be drawn therefrom]; People v. Bell (1989) 49 Cal.3d 502, 538 [comments that defense counsel’s job is to “ ‘throw sand in your eyes’ ” and “get his man off” gives same reminder]; People v. Medina (1995) 11 Cal.4th 694, 759 [saying any experienced defense attorney can

2015In this respect, the substance of the prosecutor’s argument was a fair response to defense 9 counsel’s argument and “properly served to remind the jury to focus on the relevant evidence and to not be swayed by argument alone.” (People v. Gionis (1995) 9 Cal.4th 1196, 1217, fn. 13 .) Arguably more egregious comments have not been found to have crossed the line into misconduct.