Closing argument may be vigorous and may include opprobrious epithets when they are reasonably warranted by the evidence.(People v. Fayed (2020) 9 Cal.5th 147, 207.)
Prosecutors have wide latitude in closing argument to comment on the evidence and reasonable inferences based on the evidence. (People v. Leon (2015) 61 Cal.4th 569, 606.)
BUT: it is improper to make arguments to the jury that give it the impression that ’emotion may reign over reason,’ and to present ‘irrelevant information or inflammatory rhetoric that diverts the jury’s attention from its proper role, or invites an irrational, purely subjective response.’” (People v. Leon (2015) 61 Cal.4th 569, 606.)
As a general rule, a prosecutor may not invite the jury to view the case through the victim’s eyes, because to do so appeals to the jury’s sympathy for the victim. (Ibid.)
Case Law – Permissible
Describing D as someone who enjoyed killing like ” ‘a little kid opening his toys at Christmas’ ” as a ” ‘denizen of the night’ as “the executioner” as “the terminator of precious life” as “a head hunter” and as “the complete and total essence of evil…[with] a cold unyielding heart.” (People v. Harrison (2005) 35 Cal.4th 208, 244-246.)
Describing victim as suffering a “savage beating” and how it reflected defendant’s “violent capabilities” were fair comments on the evidence. (People v. Martinez (2010) 47 Cal.4th 911, 957.)
Defendant as “Monster” or “Predator”. Prosecutors’ descriptions of defendants as “monsters” and “predators” were within the wide range of descriptive comment that is permissible during closing argument. (People v. Quintero (2024) 107 Cal.App.5th 1060.)
HOWEVER: See Racial Justice Act re: Discriminatory Language
Case Law – Prosecutorial Misconduct in Closing Argument
Facts Outside Record. Statements of facts not in evidence by the prosecuting attorney in his argument to the jury constitute misconduct. (People v. Kirkes (1952) 39 Cal.2d 719, 725.)
Witness Vouching. “Impermissible ‘vouching’ may occur where the prosecutor places the prestige of the government behind a witness through personal assurances of the witness’s veracity or suggests that information not presented to the jury supports the witness’s testimony.” (People v. Fierro (1991) 1 Cal.4th 173, 211.)
Prosecutor’s Subjective Belief in D’s Guilt. Evidence of a prosecutor’s subjective motivations when prosecuting a case is not relevant, for “it is misconduct for prosecutors to bolster their case by invoking their personal prestige, reputation, or depth of experience, or the prestige of their office, in support of it.” (People v. Bonilla (2007) 41 Cal.4th 313, 336.)
Comment on Defendant’s Failure to Call Logical Witnesses or Introduce Material Evidence
Re: Failure to Call Defense Expert. Prosecutor’s observation “that defendant had failed to adduce expert psychiatric testimony to support the claim that he was depressed and suicidal when he confessed to the crimes” did not constitute prosecutorial misconduct. (People v. Walsh (1993) 6 Cal.4th 215, 263.)
Re: Failure to Call Defense Investigator. Prosecutor comment on defense’s failure to put on a defense investigator to corroborate the providing of inconsistent statements by prosecution witness is not improper. (People v. Lewis (2009) 46 Cal.4th 1255, 1303.)