By Robert C. Phillips, Deputy District Attorney (Ret).
Prosecutors Including Prospective Jurors’ Comments in Closing Arguments: 

A trial attorney including a prospective juror’s comments in his or her closing arguments to a jury is impermissible.

Note to prosecutors (and to all trial attorneys):  Including comments in your closing arguments that were made by prospective jurors during the voir dire process is error, and could potentially get your “misconduct” reported to the state bar.  In People v. Lima (June 28, 2022) 80 Cal.App.5th 468, a gang-related murder case, the prosecutor attempted to demean the value of a defense expert’s testimony by including in her closing argument comments that had been made by several prospective jurors during voir dire. The prosecutor’s comments dealt with the jurors’ stated experiences with gang members they either personally knew or with whom they had had some association. Her apparent purpose in doing this was to convince the jury that it wasn’t tough to see that the defendant in this case was in fact a gang member, and that he committed the murder in issue here “for the benefit of, at the direction of, and in association with a criminal street gang with the specific intent to promote, further, and assist in criminal conduct by gang members.” (Elements of a gang allegation, pursuant to P.C. § 186.22(b)(1)(C).) Defense counsel’s objections to the prosecutor’s comments were overruled and/or basically ignored by the trial court judge. 

The Second District Court of Appeal (Div.5), in People v. Lima, held that this was error.  It comes under the category of “arguing facts not in evidence,” and is a violation of the defendant’s Fourteenth Amendment right to due process (i.e., it is “fundamentally unfair”). There’s prior California Supreme Court case authority to the effect that you can’t do this.  (See People v. Freeman (1994) 8 Cal.4th 450, 517.) Fortunately for the prosecutor in this case, the error was found to be harmless due to other overwhelming evidence of defendant’s guilt.  But note the Court’s warning:  “If this court had reversed defendant’s conviction, we would have been required by statute to report the prosecutor to the State Bar, for such reporting is required, ‘[w]henever a modification or reversal of a judgment in a judicial proceeding is based in whole or in part on the misconduct, incompetent representation, or willful misrepresentation of an attorney.’ (Bus. & Prof. Code, § 6086.7.)”