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Name: People v. Otero
Case #: G045246
Court: CA Court of Appeal
District 4 DCA
Division: 3
Opinion Date: 10/29/2012

A prosecutor’s use of a chart to explain reasonable doubt is misconduct, subject to harmless error analysis. Appellant was charged with and convicted of several counts of sexual assault of a minor, and sentenced to prison for life terms. During closing argument, the prosecution displayed a PowerPoint diagram to explain reasonable doubt. The diagram had the outlines of the states of California and Nevada, without the names, but with information written on them that left no doubt as to the identity of the states, even with the misinformation that was included on the outline of California. Using the diagram in his reasonable doubt explanation, the prosecutor argued to the jury that there can be no doubt that the outline of California was, in fact, California. At that point, defense counsel objected. The diagram was taken down and the jury was instructed to disregard it. The appellate court found prosecutorial misconduct. Under federal law, conduct by the prosecutor constitutes prosecutorial misconduct if it infects the trial with unfairness such that there is a denial of due process. State law considers it misconduct when a prosecutor uses deceptive or reprehensible methods to attempt to persuade either the court or the jury. With the diagram in this case, the jury incorrectly was left with the impression that the prosecution’s reasonable doubt burden can be met with a few pieces of evidence and that the jury can rely on such slight proof even when some of the evidence is demonstrably false. Although finding misconduct, the court found that with the trial court’s curative instruction the error was harmless. The court stated it published this case to caution against use of such diagrams that trivialize the prosecution’s burden because if the use continues, eventually the error will be found prejudicial and result in reversal.