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When prosecutors deprive defendants of their constitutional rights or otherwise act improperly during a criminal trial, it shakes the foundations of our criminal justice system and can result in grave injustice. Prosecutorial misconduct is a huge problem, as the recent scandal involving the Orange County District Attorney's Office has shown.

 In order for prosecutorial misconduct to be the basis for a new Riverside County criminal trial, two factors must be present:

  • the misconduct must have resulted in actual prejudice to the defendant, and
  • the defendant must have objected to the misconduct during the criminal trial

Prejudice to the Defendant

In order to get a new trial based on prosecutorial misconduct, you must show that you suffered prejudice as a result of the misconduct. In other words, the misconduct must have impacted the outcome of the case. If 10 other witnesses, DNA evidence, fingerprints, and other evidence in a case led to a conviction, the use of improper testimony from one jailhouse informant would probably not rise to the level of prejudice.

When considering a motion for a new trial based on prosecutorial misconduct, one court put it this way: “The ultimate question to be decided is, had the prosecutor refrained from the misconduct, is it reasonably probable that a result more favorable to the defendant would have occurred.” People v. Prysock (1982) 127 Cal.App.3d 972, 998.

Objection to Prosecutorial Misconduct at Trial

In most cases, you can't challenge your guilty verdict on grounds of prosecutorial misconduct unless your lawyer objected to the misconduct when it occurred.

The theory behind this rule is that—if your lawyer had objected—the judge could have instructed the jury to disregard the improper statement by the prosecutor, for example. By objecting, any prejudice could have been avoided without the need for a new trial.

If your lawyer failed to object to outrageous prosecutorial misconduct, you may not be entirely out of luck. In that case, you may be able to challenge your verdict on the grounds that you received ineffective assistance of counsel.

Call now to discuss your situation

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Gerald Schwab, Jr.


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Law Office of Gerald Schwab, Jr.
Fresno Criminal Defense Attorney
5588 N Palm Ave,
Fresno, CA 93704
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Phone: 559.441.1418