Using the Wrong Pronoun at Trial and Prosecutorial Misconduct (Special Attention Prosecutors)

By Robert Phillips, Deputy District Attorney (Ret).

A prosecutor’s failure to use the pronoun with which a defendant chooses to identify (i.e., “misgendering”) constitutes prosecutorial misconduct.

“Misgendering:” The word of the day, particularly for prosecutors in trial.  This word is defined by Merriman-Webster as the practice of “identify(ing) the gender of a person, such as a transsexual or transgender person, incorrectly, as by using an incorrect label or pronoun.”  “Misgendering” is further defined by the First District Court of Appeal (Div. 3) in the recent case of People v. Zarazua (Nov. 21, 2022) __ Cal.App.5th __, at fn. 1 [2022 Cal.App. LEXIS 956], as “the assignment of a gender with which a party does not identify, through the misuse of gendered pronouns, titles, names, and honorifics,” citing as its source 109 Cal. L. Rev. 2227, 2232, authored by Chan Tov McNamarch, and entitled “Misgendering.” 

In Zarazua, Ms. Mareza Zarazua was a woman in April, 2019, when she fled from police as they tried to stop her for the simple traffic offense of not having a rear license plate.  After a 15-minute pursuit, she crashed into some bushes and, after a brief foot chase, was arrested.  Turns out her license had been suspended.  Charged in state court with a number of traffic offenses, she showed up for trial in July, 2020 (some 15 months later) identifying herself as a male—Mr. Zarazua—having decided that “she” would rather be a “he.”  The Court does not mention whether any medicinal or surgical procedures accompanied this decision, and is apparently irrelevant to one’s decision to simply choose his (or her) gender even if that decision does not correspond with his (or her) current plumbing.  At any rate, the prosecutor in Zarazua had a hard time accepting this unexpected turn of events, continually referring to Mareza Zarazua as “she” instead of “he” despite numerous objections by the defense attorney and corresponding admonishments by the trial court judge.  Upon Zarazua being convicted on all ....

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