Prosecutorial Misconduct Case Law in California
A claim of prosecutorial misconduct is usually waived by failure to object. (People v. Coddington (2000) 23 Cal.4th 529, 595, overruled on other grounds by Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.) The record does not support Thompson's reliance upon the futility exception recognized in People v. Hill (1998) 17 Cal.4th 800, 821 (Hill).
In Hill, the court excused defense counsel's failure to object because the court not only failed to rein in the prosecutor's excesses (which consisted of "a constant barrage of unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods") in the face of defense objections, the court also made comments in front of the jury characterizing the defense objections as meritless, chastising defense counsel for making them, and suggesting that defense counsel was an obstructionist. (Id. at pp. 821-822.)
In People v. Bandhauer (1967) 66 Cal.2d 524, defense counsel was excused from objecting to the prosecutor's statement that the defendant was the most depraved character he had seen, since by the time the prosecutor made that statement he had already gradually injected other testimonial statements into the argument, making it too late to cure the error by admonition or by the prosecutor retracting his previous statements.
In People v. Hill (1998) 17 Cal.4th 800, the defendant alleged the prosecutor committed prosecutorial misconduct at trial. (Hill, supra, 17 Cal.4th at pp. 814-815, overruled on another ground in Price v. Superior Court (2001) 25 Cal.4th 1046, 1069, fn. 13.)
The California Supreme Court noted, " 'As a general rule a defendant may not complain on appeal of prosecutorial misconduct unless in a timely fashion--and on the same ground--the defendant made an assignment of misconduct and requested that the jury be admonished to disregard the impropriety' " but explained that "a defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile." (Hill, at p. 820, quoting People v. Samayoa (1997) 15 Cal.4th 795, 841 64 Cal. Rptr. 2d 400, 938 P.2d 2.)
The Hill court concluded the defendant preserved his prosecutorial misconduct claim for review even though trial counsel did not object to all of the instances of misconduct. (Hill, supra, 17 Cal.4th at p. 821.)
The court explained that defense counsel "was subjected to a constant barrage of the prosecutor's unethical conduct, including misstating the evidence, sarcastic and critical comments demeaning defense counsel, and propounding outright falsehoods. With a few exceptions, all of the misconduct occurred in front of the jury. Her continual misconduct, coupled with the trial court's failure to rein in her excesses, created a trial atmosphere so poisonous that defense counsel was thrust upon the horns of a dilemma. On the one hand, he could continually object to the prosecutor's misconduct and risk repeatedly provoking the trial court's wrath, which took the form of comments before the jury suggesting defense counsel was an obstructionist, delaying the trial with 'meritless' objections. These comments from the bench ran an obvious risk of prejudicing the jury towards his client. On the other hand, defense counsel could decline to object, thereby forcing defendant to suffer the prejudice caused by defense counsel's constant misconduct. Under these unusual circumstances, we conclude defense counsel must be excused from the legal obligation to continually object, state the grounds of his objection, and ask the jury be admonished. On this record, we are convinced any additional attempts on his part to do so would have been futile and counterproductive to his client. " (Ibid.)