California Case Law on Improper Prosecutor's Argument
When a defendant makes a timely objection to prosecutorial argument, the reviewing court must determine first whether misconduct has occurred.
Second, if misconduct has occurred, the Court determines whether it is reasonably probable that a result more favorable to the defendant would have occurred absent the misconduct. (People v. Welch (1999) 20 Cal.4th 701, 752-753; People v. Zambrano (2004) 124 Cal.App.4th 228, 243.)
When the claim focuses upon comments made by the prosecutor 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. (People v. Samayoa (1997) 15 Cal.4th 795, 841.)
In People v. Nguyen (1995) 40 Cal.App.4th 28 and People v. Johnson (2004) 115 Cal.App.4th 1169. In Nguyen, the prosecutor made the following statements to the jury during summation:
" 'The standard is reasonable doubt. That is the standard in every single criminal case. And the jails and prisons are full, ladies and gentlemen. It's a very reachable standard that you use every day in your lives when you make important decisions, decisions about whether you want to get married, decisions that take your life at stake when you change lanes as you're driving. If you have reasonable doubt that you're going to get in a car accident, you don't change lanes. So it's a standard that you apply in your life. It's a very high standard. And read that instruction, too. I won't paraphrase it because it's a very difficult instruction, but it's not an unattainable standard. It's the standard in every single criminal case.' " (Nguyen, supra, 40 Cal.App.4th at p. 35.)
The Nguyen court held that the prosecutor's argument was improper and "strongly disapproved of arguments suggesting the reasonable doubt standard is used in daily life to decide such questions as whether to change lanes or marry." (Nguyen, supra, 40 Cal.App.4th at p. 36.)
The court further held that the improper argument was harmless because the prosecutor directed the jury to read the reasonable doubt instruction and the jury was correctly instructed on the standard. (Id. at pp. 36-37.) For the same reasons, the failure of defense counsel to object to the prosecutor's statements did not constitute ineffective assistance of counsel. (Id. at p. 37.)
In People v. Johnson (2004), the trial court, during jury selection, elaborated on the concept of reasonable doubt as follows:
" 'The burden is proof beyond a reasonable doubt. A doubt that has reason to it, not a ridiculous doubt, not a mere possible doubt. Because we all have a possible doubt whether we will be here tomorrow. That's certainly a possibility. We could be run over tonight. God, that would be a horrible thing, but it's a possibility. It's not reasonable for us to think that we will because we plan our lives around the prospect of being alive. We take vacations; we get on airplanes. We do all these things because we have a belief beyond a reasonable doubt that we will be here tomorrow or we will be here in June, in my case, to go to Hawaii on a vacation. But we wouldn't plan our lives ahead if we had a reasonable doubt that we would, in fact, be alive.' " (115 Cal.App.4th at p. 1171.)
On appeal, after determining that the defendant had not waived his claim by failing to object to the trial court's comments, the Court of Appeal quoted People v. Brannon (1873) 47 Cal. 96, which states, "The judgment of a reasonable man in the ordinary affairs of life, however important, is influenced and controlled by the preponderance of evidence. Juries are permitted and instructed to apply the same rule to the determination of civil actions involving rights of property only. But in the decision of a criminal case involving life or liberty, something further is required." (Id. at p. 97.)
The Johnson court rejected the notion "that people planning vacations or scheduling flights engage in a deliberative process to the depth required of jurors," or "finalize their plans only after persuading themselves that they have an abiding conviction of the wisdom of the endeavor," and "make such decisions while aware of the concept of 'beyond a reasonable doubt.' " (Johnson, supra, 115 Cal.App.4th at p. 1172.)
Thus, the judgment was reversed because the trial court's attempt to explain reasonable doubt had the effect of lowering the prosecution's burden of proof.