prosecutorial misconduct test in Kansas

2014Second, Huddleston refers to what she labels “the traditional prosecutorial misconduct analysis.” See State v. Tosh, 278 Kan. 83, 93 , 91 P.3d 1204 (2004).

2014Second, Huddleston refers to what she labels “the traditional prosecutorial misconduct analysis.” See State v. Tosh, 278 Kan. 83, 93 , 91 P.3d 1204 (2004).

2014When the prosecutor argues facts that are not in evidence, the first prong of the prosecutorial misconduct test is met.”), cert. denied 541 U.S. 1090 (2004).

2011In State v. King, 288 Kan. 333, 351 , 204 P.3d 585 (2009), we stated: "When a prosecutor argues facts that are not in evidence, this court has consistently found that `the first prong of the prosecutorial misconduct test is met.'" See State v. Ly, 277 Kan. 386 , Syl. ¶ 4, 85 P.3d 1200 , cert. denied 541 U.S. 1090 , 124 S.Ct. 2822 , 159 L.Ed.2d 254 (2004) (statement made in closing argument not supported by evidence at trial; court proceeded to second step in prosecutorial misconduct analysis: whether statement constituted plain error); State v. Gardner, 264 Kan. 95, 106-07 , 955 P.2d 1199 (199

2011In State v. King, 288 Kan. 333, 351 , 204 P.3d 585 (2009), we stated: "When a prosecutor argues facts that are not in evidence, this court has consistently found that `the first prong of the prosecutorial misconduct test is met.'" See State v. Ly, 277 Kan. 386 , Syl. ¶ 4, 85 P.3d 1200 , cert. denied 541 U.S. 1090 , 124 S.Ct. 2822 , 159 L.Ed.2d 254 (2004) (statement made in closing argument not supported by evidence at trial; court proceeded to second step in prosecutorial misconduct analysis: whether statement constituted plain error); State v. Gardner, 264 Kan. 95, 106-07 , 955 P.2d 1199 (199

2011In State v. King, 288 Kan. 333, 351 , 204 P.3d 585 (2009), we stated: "When a prosecutor argues facts that are not in evidence, this court has consistently found that `the first prong of the prosecutorial misconduct test is met.'" See State v. Ly, 277 Kan. 386 , Syl. ¶ 4, 85 P.3d 1200 , cert. denied 541 U.S. 1090 , 124 S.Ct. 2822 , 159 L.Ed.2d 254 (2004) (statement made in closing argument not supported by evidence at trial; court proceeded to second step in prosecutorial misconduct analysis: whether statement constituted plain error); State v. Gardner, 264 Kan. 95, 106-07 , 955 P.2d 1199 (199

2012The third factor of the second step of the prosecutorial misconduct test may not override the first two factors unless the State proves “ ‘beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record/ ” State v. Naputi, 293 Kan. 55, 58 , 260 P.3d 86 (2011) (quoting State v. Ward, 292 Kan. 541 , Syl. ¶ 6, 256 P.3d 801 [2011]).

2012The third factor of the second step of the prosecutorial misconduct test may not override the first two factors unless the State proves “ ‘beyond a reasonable doubt that the error complained of did not affect the outcome of the trial in light of the entire record/ ” State v. Naputi, 293 Kan. 55, 58 , 260 P.3d 86 (2011) (quoting State v. Ward, 292 Kan. 541 , Syl. ¶ 6, 256 P.3d 801 [2011]).

2025If they are not, the first prong of the prosecutorial misconduct test is met, and an appellate court must then consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial. [Citations omitted.]" State v. Killings, 301 Kan. 214, 228 , 340 P.3d 1186 (2015).

2025If they are not, the first prong of the prosecutorial misconduct test is met, and an appellate court must then consider whether the misstatement prejudiced the jury against the defendant and denied the defendant a fair trial. [Citations omitted.]" State v. Killings, 301 Kan. 214, 228 , 340 P.3d 1186 (2015).

2011In State v. Smith, 258 Kan. 321, 323-24 , 904 P.2d 999 (1995), after noting Rule 3.4(e), we held that the prosecutor's reference to the Bible in his question during cross-examination of defendant was "clearly improper," but not reversible, conduct.

2011In State v. Smith, 258 Kan. 321, 323-24 , 904 P.2d 999 (1995), after noting Rule 3.4(e), we held that the prosecutor's reference to the Bible in his question during cross-examination of defendant was "clearly improper," but not reversible, conduct.

2002State v. Lockhart, 24 Kan.

2001State v. Lockhart, 24 Kan.

2024And one of the prosecution's statements discussing both requisite elements was expressed just before the alleged misstatement of law. 19 This court must "not consider the remark in isolation but instead consider[] the remark in the context of the entire closing argument and the instructions given to the jury." State v. Burnett, 293 Kan. 840 , Syl. ¶ 7, 851-52, 270 P.3d 1115 (2012) (finding the prosecutor did not misstate the law in closing arguments "in the context of the entire closing argument and in conjunction with the instructions given at trial" so it "need not address the second step of

2024And one of the prosecution's statements discussing both requisite elements was expressed just before the alleged misstatement of law. 19 This court must "not consider the remark in isolation but instead consider[] the remark in the context of the entire closing argument and the instructions given to the jury." State v. Burnett, 293 Kan. 840 , Syl. ¶ 7, 851-52, 270 P.3d 1115 (2012) (finding the prosecutor did not misstate the law in closing arguments "in the context of the entire closing argument and in conjunction with the instructions given at trial" so it "need not address the second step of

2024State v. Ross, 310 Kan. 216 , 221, 445 P.3d 726 (2019).

2020Butler, 307 Kan. at 863 . 24 In State v. Kleypas, 305 Kan. 224 , 314-24, 382 P.3d 373 (2016), the prosecutorial misconduct claim arose in a jury trial held pre-Sherman.

2016When a prosecutorial misconduct claim arises from a prosecutor's conduct during the penalty phase of a death penalty case, we have recognized a prosecutor's "heightened duty" to refrain from misconduct "[b]ecause of the life and death nature of the proceedings." State v. Kleypas, 272 Kan. 894, 1084 , 40 P.3d 139 (2001) (Kleypas I), cert. 120 denied 537 U.S. 834 (2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163 , 126 S. Ct. 2516 , 165 L.

2016When a prosecutorial misconduct claim arises from a prosecutor's conduct during the penalty phase of a death penalty case, we have recognized a prosecutor's "heightened duty" to refrain from misconduct "[b]ecause of the life and death nature of the proceedings." State v. Kleypas, 272 Kan. 894, 1084 , 40 P.3d 139 (2001) (Kleypas I), cert. 120 denied 537 U.S. 834 (2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163 , 126 S. Ct. 2516 , 165 L.

2016When a prosecutorial misconduct claim arises from a prosecutor's conduct during the penalty phase of a death penalty case, we have recognized a prosecutor's "heightened duty" to refrain from misconduct "[b]ecause of the life and death nature of the proceedings." State v. Kleypas, 272 Kan. 894, 1084 , 40 P.3d 139 (2001) (Kleypas I), cert. 120 denied 537 U.S. 834 (2002), abrogated in part by Kansas v. Marsh, 548 U.S. 163 , 126 S. Ct. 2516 , 165 L.

2015State v. Hurt, 278 Kan. 676, 682 , 101 P.3d 1249 (2004).

2015State v. Hurt, 278 Kan. 676, 682 , 101 P.3d 1249 (2004).

2014Thus, we follow the protocol in State v. Raskie, 293 Kan. 906, 918 , 269 P.3d 1268 (2012): “Because there was a misstatement of *943 the law, we move to the second step of the prosecutorial misconduct analysis to determine if [the defendant] was denied a fair trial.” To determine whether Ramirez was denied a fair trial, we must consider three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would like

2014Thus, we follow the protocol in State v. Raskie, 293 Kan. 906, 918 , 269 P.3d 1268 (2012): “Because there was a misstatement of *943 the law, we move to the second step of the prosecutorial misconduct analysis to determine if [the defendant] was denied a fair trial.” To determine whether Ramirez was denied a fair trial, we must consider three factors: (1) whether the misconduct was gross and flagrant; (2) whether the misconduct showed ill will on the prosecutor’s part; and (3) whether the evidence against the defendant was of such a direct and overwhelming nature that the misconduct would like

2014State v. Jones, 298 Kan. 324, 335 , 311 P.3d 1125 (2013).

2014State v. Jones, 298 Kan. 324, 335 , 311 P.3d 1125 (2013).

2013It noted a prosecutor’s statements are not evidence and that the jury was so advised. 2010 WL 481257, at *3-4 .

2013We are considering the third factor of the second step of the prosecutorial misconduct analysis: “ whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.’ ” State v. McCaslin, 291 Kan. 697, 715-16 , 245 P.3d 1030 (2011) (quoting State v. Bryant, 285 Kan. 970 , Syl. ¶ 2, 179 P.3d 1122 [2008]).

2013We are considering the third factor of the second step of the prosecutorial misconduct analysis: “ whether the evidence against the defendant is of such a direct and overwhelming nature that the misconduct would likely have had little weight in the minds of the jurors.’ ” State v. McCaslin, 291 Kan. 697, 715-16 , 245 P.3d 1030 (2011) (quoting State v. Bryant, 285 Kan. 970 , Syl. ¶ 2, 179 P.3d 1122 [2008]).