Cited by

–08 ¶ 16 (1999) (“By failing to give the [lesser included offense instruction], the trial court denied appellant ‘a right essential to his defense’ and affected the ‘very foundation of [his] theory of defense.’” (second alteration in original)); ¶ 25 (2021) (“By inviting the jury to circumvent the reasonable-doubt standard and consequently undermining Defendants’ constitutional rights and safeguards, the prosecutor deprived Defendants of an ‘essential right’ necessary to rebut the State’s case.”

¶17 Although Martinez arose in a disciplinary context, ¶ 12 (2021), that the same principle governs in criminal cases.

It sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct.’” ¶ 58 (Ariz. 2025) ( ¶ 12 (2021)); see also State v. Romero, __ P.3d __ ¶ 20 (May 15, 2026) (holding that “[a] prosecutor’s intent is not a prerequisite to establishing prosecutorial error” or obtaining relief).

Here, although Egan characterizes some of the alleged instances as “intentional,” we find the prosecutor’s actions are “better characterized as inadvertent error rather than intentional misconduct.”

xpert; attempting to mislead the jury; misstating the evidence in closing; and vouching.” “To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s misconduct ‘so infected the trial with unfairness as to make the resulting conviction a denial of due process.’” ¶ 46 (2007) (citation omitted); ¶ 13 (2021).

¶28 “To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor’s misconduct so infected the trial with unfairness as to make the resulting conviction a denial of due process.” ¶ 13 (2021) (cleaned up).

¶14 The State argues that because Hill does not “allege any ethical violations by the prosecutors, his claims should be analyzed for ‘prosecutorial error’ instead.” Prosecutorial misconduct and prosecutorial error both encompass “any conduct that infringes a defendant’s constitutional rights.” ¶ 12 (2021).

It sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct.” ¶ 12 (2021) (emphasis in original) ( ¶ 45 (2020)).

(first step of fundamental error review is “determining whether trial error exists.” ()).

¶ 47 (2020) (courts should avoid characterizing prosecutorial error as misconduct when no ethical violation is alleged); ¶ 12 (2021) (cumulative error review is the same for both prosecutorial error and misconduct).

¶15 Cabret relies on our supreme court’s to support his argument that the prosecution’s references to “a reasonable likelihood” prejudiced him.

“Error is fundamental if it goes to the foundation of a case, takes away an essential right, or is so egregious that a defendant could not have received a fair trial.” ¶ 14 (2021).

“To prevail under the fundamental error standard, a defendant must show an error that ’goes to the foundation of a case, takes away an essential right, or is so egregious that [the] defendant could not have received a fair trial.’” Sulu-Kerr, 256 Ariz. at 536, ¶ 20 ( ¶ 14 (2021)).

Prosecutorial Error ¶21 On appeal, Romero argues cumulative prosecutorial error deprived him of a fair trial.6 To entitle a defendant to relief, the prosecutor’s conduct must “so infect[] the trial with unfairness as to make the resulting conviction a denial of due process.” ().

To prevail under the fundamental error standard, a defendant must show an error that “goes to the foundation of a case, takes away an essential right, or is so egregious that [the] defendant could not have received a fair trial.” ¶ 14 (2021) (internal quotation and citation omitted).

For example, defense counsel argued that the State “has not proven any emotional harm that was caused by [Fichtelman] to [G.F.].” ¶ 37 (2021) (“Closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions.” (citation omitted)).

¶ 1 (2018); ¶ 14 (2021).

State v. Stevens, 173 Ariz. 2 As our supreme court has explained, the term “prosecutorial misconduct” broadly encompasses any conduct that violates a defendant’s constitutional rights and “sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct.” ¶ 12 (2021) ( ¶ 45 (2020)).

And she admitted to moving an ounce of methamphetamine 3 As our supreme court has explained, the term “prosecutorial misconduct” broadly encompasses any conduct that violates a defendant’s constitutional rights and “sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct.” ¶ 12 (2021) ( ¶ 45 (2020)).

3 As our supreme court has explained, the term “prosecutorial misconduct” broadly encompasses any conduct that violates a defendant’s constitutional rights and “sweeps in prosecutorial conduct ranging from inadvertent error or innocent mistake to intentional misconduct.” ¶ 12 (2021) ( ¶ 45 (2020)).