Court presses counsel on whether prosecutors' repeated use of 'absurd' constituted misconduct

During argument the court asked counsel to address an appellate claim that the prosecutor repeatedly called defense testimony "absurd" in closing and rebuttal, a term the defense argued implied misconduct. The bench asked whether the usage should be treated as flagrant misconduct or as ordinary argument requiring objection.

Andrew Yee replied that the prosecutor's use of "absurd" criticized the plausibility of the testimony, not the defendant personally, drawing a distinction with cases where counsel impermissibly impugned a witness or defense counsel. "Absurd here simply meant that the defendant's testimony was not plausible, and it did not align with the other evidence," Yee said.

Yee added that the issue was subject to waiver because defense counsel did not object at trial and argued that, even if misconduct occurred, any error was harmless beyond a reasonable doubt because of eyewitness identification, surveillance footage showing similar clothing, and a recorded confession to a friend.

The court pressed whether a different phrasing ("implausible") would change the analysis and whether a curative instruction would have remedied the harm. Counsel responded that a curative instruction could have addressed prejudice if an objection had been lodged and that the cumulative evidentiary record supports a harmless-error determination.