The failure of trial counsel to object to prosecutorial misconduct during argument to the jury does not necessarily preclude an appellate claim based on the misconduct. For example, the second circuit has held that “[d]efense counsel’s failure to request specific instructions may be overlooked where the prosecutor’s misconduct is so prejudicial that no instruction could mitigate its effects....” U.S. v. Melendez, 57 F.3d 238, 242 (2nd Cir. 1995); see also People v. Hill (1998) 17 Cal.4th 800, 820. However, “in less egregious cases, the failure to request specific instructions before the jury retires will limit the defense’s ability to complain about the relative lack of curative measures for the first time on appeal.” Ibid.; see also U.S. v. Deandrade, 600 F.3d 115, 199-120 (2nd Cir. N.Y. March 12, 2010, No. 08-4815-cr) [judge did not have sua sponte duty to give curative instruction when misconduct was not sufficiently egregious].
The rationale for such a rule is that counsel generally need not make futile objections. Thus, if the misconduct is so egregious that it cannot be cured by a limiting instruction then the claim is not waived by the failure of counsel to request such an instruction:
"A defendant will be excused from the necessity of either a timely objection and/or a request for admonition if either would be futile. In addition, failure to request the jury be admonished does not forfeit the issue for appeal if an admonition would not have cured the harm caused by the misconduct. [Citations and quote marks omitted.]" People v. Hill, 17 Cal. 4th 800, 820-821 (Cal. Supreme Court 1998).
Additionally, the absence of a request for a curative admonition does not forfeit the issue for appeal if ‘the court immediately overrules an objection to alleged prosecutorial misconduct [and as a consequence] the defendant has no opportunity to make such a request.’ [Citations.]” Ibid.
For subscription based briefing and sample instructions on this and related issues see:
Forecite National™
Chapter 20: Prosecutor Duties And Misconduct At Trial
272.4 - Prosecutor Misconduct During Summation/Closing Argument
The Shellow Instructions
Prosecution Misconduct
Forecite California™
PG VII(I)(b) - Grounds For All Cases—Capital and Non-Capital
F 2.019 - Prosecutorial Misconduct
