prosecutorial misconduct claim in Washington

2025To prevail on a prosecutorial misconduct claim, “the defendant bears the burden of proving that the prosecutor’s conduct was both improper and prejudicial.” State v. Emery, 174 Wn.2d 741, 756 , 278 P.3d 653 (2012).

2025“In a prosecutorial misconduct claim, the defendant bears the burden of proving that the prosecutor’s conduct was both improper and prejudicial.” State v. Emery, 174 Wn.2d 741, 756 , 278 P.3d 653 (2012).

2025To prevail on a prosecutorial misconduct claim, the defendant must show “that in the context of the record and all of the circumstances of the trial, the prosecutor’s conduct was both improper and prejudicial.” Id. at 704 .

2019Restraint of Glasmann, 175 Wn.2d 696, 703-04 , 286 P.3d 673 (2012). ‘A personal restraint petitioner raising a prosecutorial misconduct claim must prove the misconduct was either a constitutional error resulting in actual and substantial prejudice or a fundamental defect resulting in a complete miscarriage of justice.” In re Pers.

2023State v. Stenson, 132 Wn.2d 668, 718-19 , 940 P.2d 1239 (1997).

2017To prevail on a prosecutorial misconduct claim, a defendant must establish that the prosecutor's conduct was improper and prejudicia1.38 The absence of either misconduct or prejudice is fatal to this claim.39 36 GR 11.2(b). 37 Id.(emphasis added). 38 State v. Lindsay, 180 Wn.2d 423, 431 , 326 P.3d 125 (2014). 39 See Stenson, 132 Wn.2d at 718-19 . 14 No. 72951-9-1/15 Prosecutors may not express personal opinions on the credibility of a witness.4° But no prejudicial error occurs "unless it is 'clear and unmistakable" that the prosecutor expressed a personal opinion.41 For example, a prosecutor i

2023State v. Stenson, 132 Wn.2d 668, 718-19 , 940 P.2d 1239 (1997).

2021State v. Stenson, 132 Wn.2d 668, 718-19 , 940 P.2d 1239 (1997).

2026Slater, 197 Wn.2d at 681 . 2.

2026Slater, 197 Wn.2d at 681 .

2017To prevail on a prosecutorial misconduct claim, a defendant must establish that the prosecutor's conduct was improper and prejudicia1.38 The absence of either misconduct or prejudice is fatal to this claim.39 36 GR 11.2(b). 37 Id.(emphasis added). 38 State v. Lindsay, 180 Wn.2d 423, 431 , 326 P.3d 125 (2014). 39 See Stenson, 132 Wn.2d at 718-19 . 14 No. 72951-9-1/15 Prosecutors may not express personal opinions on the credibility of a witness.4° But no prejudicial error occurs "unless it is 'clear and unmistakable" that the prosecutor expressed a personal opinion.41 For example, a prosecutor i

2017To prevail on a prosecutorial misconduct claim, a defendant must establish that the prosecutor's conduct was improper and prejudicia1.38 The absence of either misconduct or prejudice is fatal to this claim.39 36 GR 11.2(b). 37 Id.(emphasis added). 38 State v. Lindsay, 180 Wn.2d 423, 431 , 326 P.3d 125 (2014). 39 See Stenson, 132 Wn.2d at 718-19 . 14 No. 72951-9-1/15 Prosecutors may not express personal opinions on the credibility of a witness.4° But no prejudicial error occurs "unless it is 'clear and unmistakable" that the prosecutor expressed a personal opinion.41 For example, a prosecutor i

2019State v. Warren, 165 Wn.2d 17, 26 , 195 P.3d 940 (2008).

2017State v. Warren, 165 Wn.2d 17 , 26 n.3, 195 P.3d 940 (2008) (declining to address whether a constitutional error analysis was appropriate when the alleged prosecutorial misconduct violated a constitutional right, noting that the traditional two- part prosecutorial misconduct test “has long been our approach to analyzing prosecutorial misconduct”). 14 No. 48946-5-II Guenther does not show a substantial likelihood that the improper questioning affected the jury’s decision, and this prosecutorial misconduct claim fails.

2016In analyzing a prosecutorial misconduct claim, we “focus less on whether the prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured.” Emery, 174 Wn.2d at 762 . “‘The 7 No. 47094-2-II criterion always is, has such a feeling of prejudice been engendered or located in the minds of the jury as to prevent a [defendant] from having a fair trial?’” Emery, 174 Wn.2d at 762 (alteration in original) (quoting Slattery v. City of Seattle, 169 Wash. 144, 148 , 13 P.2d 464 (1932)).

2016In analyzing a prosecutorial misconduct claim, we “focus less on whether the prosecutor’s misconduct was flagrant or ill intentioned and more on whether the resulting prejudice could have been cured.” Emery, 174 Wn.2d at 762 . “‘The 7 No. 47094-2-II criterion always is, has such a feeling of prejudice been engendered or located in the minds of the jury as to prevent a [defendant] from having a fair trial?’” Emery, 174 Wn.2d at 762 (alteration in original) (quoting Slattery v. City of Seattle, 169 Wash. 144, 148 , 13 P.2d 464 (1932)).

2026We consider whether “‘the prosecutor’s improper comments are prejudicial only where there is a substantial likelihood the misconduct affected the jury’s verdict.’” State v. Bagby, 200 Wn.2d 777 , 788, 522 P.3d 982 (2023) (internal quotation marks omitted) (quoting State v. Monday, 171 Wn.2d 667, 675 , 257 P.3d 551 (2011)).

2020We review the prosecutor’s conduct and whether prejudice resulted therefrom “by examining that conduct in the full trial context, including the evidence presented, ‘the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.’” State v. Monday, 171 Wn.2d 667, 675 , 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52 , 134 P.3d 221 (2006)). 8 51432-0-II In a prosecutorial misconduct claim, a defendant who fails to object to improper conduct may be deemed to have waived t

2023Moreover, we have found no authority holding that a defendant must both timely object and formally request a curative instruction in order to preserve a prosecutorial misconduct claim for appeal. 12 No. 56817-9-II To prevail on a claim of prosecutorial misconduct, West must show “ ‘that the prosecutor’s conduct was both improper and prejudicial.’ ” State v. Thorgerson, 172 Wn.2d 438, 442 , 258 P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191 , 189 P.3d 126 (2008)).

2014To prevail on a prosecutorial misconduct claim, the defendant must establish "' that the prosecutor' s conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial. ' State v. Thorgerson, 172 Wn.2d 438, 442 , 258 P. 3d 43 ( 2011) quoting State v. Magers, 164 Wn. 2d 174, 191 , 189 P. 3d 126 ( 2008)).

2026“To prevail on a prosecutorial misconduct claim, a defendant who timely objects to a prosecutor’s conduct at trial must prove that the ‘conduct was both improper and prejudicial in the context of the entire trial.’” State v. Loughbom, 196 Wn.2d 64 , 70, 470 P.3d 499 (2020) (quoting State v. Walker, 182 Wn.2d 463, 477 , 341 P.3d 976 (2015)).

2026“To prevail on a prosecutorial misconduct claim, a defendant who timely objects to a prosecutor’s conduct at trial must prove that the ‘conduct was both improper and prejudicial in the context of the entire trial.’” State v. Loughbom, 196 Wn.2d 64 , 70, 470 P.3d 499 (2020) (quoting State v. Walker, 182 Wn.2d 463, 477 , 341 P.3d 976 (2015)).

2026We consider whether “‘the prosecutor’s improper comments are prejudicial only where there is a substantial likelihood the misconduct affected the jury’s verdict.’” State v. Bagby, 200 Wn.2d 777 , 788, 522 P.3d 982 (2023) (internal quotation marks omitted) (quoting State v. Monday, 171 Wn.2d 667, 675 , 257 P.3d 551 (2011)).

2020We review the prosecutor’s conduct and whether prejudice resulted therefrom “by examining that conduct in the full trial context, including the evidence presented, ‘the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.’” State v. Monday, 171 Wn.2d 667, 675 , 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52 , 134 P.3d 221 (2006)). 8 51432-0-II In a prosecutorial misconduct claim, a defendant who fails to object to improper conduct may be deemed to have waived t

2023Moreover, we have found no authority holding that a defendant must both timely object and formally request a curative instruction in order to preserve a prosecutorial misconduct claim for appeal. 12 No. 56817-9-II To prevail on a claim of prosecutorial misconduct, West must show “ ‘that the prosecutor’s conduct was both improper and prejudicial.’ ” State v. Thorgerson, 172 Wn.2d 438, 442 , 258 P.3d 43 (2011) (internal quotation marks omitted) (quoting State v. Magers, 164 Wn.2d 174, 191 , 189 P.3d 126 (2008)).

2014To prevail on a prosecutorial misconduct claim, the defendant must establish "' that the prosecutor' s conduct was both improper and prejudicial in the context of the entire record and the circumstances at trial. ' State v. Thorgerson, 172 Wn.2d 438, 442 , 258 P. 3d 43 ( 2011) quoting State v. Magers, 164 Wn. 2d 174, 191 , 189 P. 3d 126 ( 2008)).

2022Id. at 704 . “[I]mproper arguments should be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.” State v. Russell, 125 Wn.2d 24, 85-86 , 882 P.2d 747 (1994).

2022Id. at 704 . “[I]mproper arguments should be reviewed in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given.” State v. Russell, 125 Wn.2d 24, 85-86 , 882 P.2d 747 (1994).

2021McKenzie, 157 Wn.2d at 52 .

2020We review the prosecutor’s conduct and whether prejudice resulted therefrom “by examining that conduct in the full trial context, including the evidence presented, ‘the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.’” State v. Monday, 171 Wn.2d 667, 675 , 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52 , 134 P.3d 221 (2006)). 8 51432-0-II In a prosecutorial misconduct claim, a defendant who fails to object to improper conduct may be deemed to have waived t

2019State v. Warren, 165 Wn.2d 17, 26 , 195 P.3d 940 (2008).

2017State v. Warren, 165 Wn.2d 17 , 26 n.3, 195 P.3d 940 (2008) (declining to address whether a constitutional error analysis was appropriate when the alleged prosecutorial misconduct violated a constitutional right, noting that the traditional two- part prosecutorial misconduct test “has long been our approach to analyzing prosecutorial misconduct”). 14 No. 48946-5-II Guenther does not show a substantial likelihood that the improper questioning affected the jury’s decision, and this prosecutorial misconduct claim fails.

2010State v. Gregory, 158 Wash.2d 759, 860 , 147 P.3d 1201 (2006). ¶ 50 Sublett first contends that the prosecutor committed misconduct by misstating the probative value of the DNA evidence at closing.

2010State v. Gregory, 158 Wn.2d 759, 860 , 147 P.3d 1201 (2006). ¶50 Sublett first contends that the prosecutor committed misconduct by misstating the probative value of the DNA evidence at closing.

2020We review the prosecutor’s conduct and whether prejudice resulted therefrom “by examining that conduct in the full trial context, including the evidence presented, ‘the context of the total argument, the issues in the case, the evidence 5 No. 51837-6-II addressed in the argument, and the instructions given to the jury.’” State v. Monday, 171 Wn.2d 667, 675 , 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52 , 134 P.3d 221 (2006)).

2020We review the prosecutor’s conduct and whether prejudice resulted therefrom “by examining that conduct in the full trial context, including the evidence presented, ‘the context of the total argument, the issues in the case, the evidence addressed in the argument, and the instructions given to the jury.’” State v. Monday, 171 Wn.2d 667, 675 , 257 P.3d 551 (2011) (internal quotation marks omitted) (quoting State v. McKenzie, 157 Wn.2d 44, 52 , 134 P.3d 221 (2006)). 8 51432-0-II In a prosecutorial misconduct claim, a defendant who fails to object to improper conduct may be deemed to have waived t

2015“Absent a proper objection and a request for a curative instruction, the defense waives a prosecutorial misconduct claim unless the comment was so flagrant or ill intentioned that an instruction could not have cured the prejudice.” Id.

2013"Absent a proper objection and a request for a curative instruction, the defense waives a prosecutorial misconduct claim unless the comment was so flagrant or ill intentioned that an instruction could not have cured the prejudice." Id.

2014App. 576, 594 , 242 P. 3d 52 ( 2010) ( citing State v. Russell, 125 Wn. 2d 24, 86 , 882 P. 2d 747 ( 1994), cert. denied, 514 U. S. 1129 ( 1995)).

2010State v. Russell, 125 Wn.2d 24, 86 , 882 P.2d 747 (1994), cert. denied, 514 U.S. 1129 (1995). ¶36 We review a prosecutor’s allegedly improper comments in the context of the total argument, the issues in the case, the evidence addressed in the argument, and the jury instructions given.

2011A. Standard of Review ¶ 31 To prevail on a prosecutorial misconduct claim, a petitioner "`must establish both improper conduct by the prosecutor and prejudicial effect.'" Pirtle, 136 Wash.2d at 481-82 , 965 P.2d 593 (quoting State v. Pirtle, 127 Wash.2d 628, 672 , 904 P.2d 245 (1995)).

2010A. Standard of Review ¶31 To prevail on a prosecutorial misconduct claim, a petitioner “ ‘must establish both improper conduct by the prosecutor and prejudicial effect.’ ” Pirtle, 136 Wn.2d at 481 -82 (quoting State v. Pirtle, 127 Wn.2d 628, 672 , 904 P.2d 245 (1995)).

2011A. Standard of Review ¶ 31 To prevail on a prosecutorial misconduct claim, a petitioner "`must establish both improper conduct by the prosecutor and prejudicial effect.'" Pirtle, 136 Wash.2d at 481-82 , 965 P.2d 593 (quoting State v. Pirtle, 127 Wash.2d 628, 672 , 904 P.2d 245 (1995)).

2010A. Standard of Review ¶31 To prevail on a prosecutorial misconduct claim, a petitioner “ ‘must establish both improper conduct by the prosecutor and prejudicial effect.’ ” Pirtle, 136 Wn.2d at 481 -82 (quoting State v. Pirtle, 127 Wn.2d 628, 672 , 904 P.2d 245 (1995)).

2010State v. Gregory, 158 Wash.2d 759, 860 , 147 P.3d 1201 (2006). ¶ 50 Sublett first contends that the prosecutor committed misconduct by misstating the probative value of the DNA evidence at closing.

2010State v. Gregory, 158 Wn.2d 759, 860 , 147 P.3d 1201 (2006). ¶50 Sublett first contends that the prosecutor committed misconduct by misstating the probative value of the DNA evidence at closing.

2019State v. Dhaliwal, 150 Wn.2d 559, 578 , 79 P.3d 432 (2003).

2018The prosecutor's challenged statements are evaluated "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." State v. Dhaliwal, 150 Wn.2d 559, 578 , 79 P.3d 432 (2003)."A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." State v. Boehning, 127 Wn.

2019State v. Dhaliwal, 150 Wn.2d 559, 578 , 79 P.3d 432 (2003).

2018The prosecutor's challenged statements are evaluated "within the context of the prosecutor's entire argument, the issues in the case, the evidence discussed in the argument, and the jury instructions." State v. Dhaliwal, 150 Wn.2d 559, 578 , 79 P.3d 432 (2003)."A prosecutor has wide latitude in closing argument to draw reasonable inferences from the evidence and to express such inferences to the jury." State v. Boehning, 127 Wn.

2019"In reviewing a prosecutorial misconduct claim, we generally afford the State great latitude in making arguments to the jury." State v. Sublett, 156 Wn.

2014State v. Sublett, 156 Wn.

2014Cf. State v. Ish, 170 Wn.2d 189 , 195 n.6, 241 P.3d 389 (2010) (refusing to draw fine lines between error and misconduct).

2014Cf. State v. Ish, 170 Wn.2d 189 , 195 n. 6, 241 P. 3d 389 ( 2010) ( refusing to draw fine lines between error and misconduct).