State v. Banks, 481 P.3d 1275

Defendant Banks was charged with one count of harassment for allegedly swatting a customer’s ponytail in a T‑Mobile store; the state produced a store surveillance video in discovery but the video did not show the alleged assault.
During voir dire the prosecutor told prospective jurors that the "rules of evidence" limit what she could present, that "some things are not going to come into the trial today," and that the jurors would "not [have] all the facts." Defense counsel objected and requested a curative jury instruction; the trial court overruled and declined the requested instruction.
At trial witnesses (store employees) testified there were many cameras that "would show" the incident, but the only video produced did not show the alleged swat; defense introduced that video and emphasized the absence of corroborating footage.
During deliberations the jury asked whether the prosecutor knew if video of the hair‑smack existed and whether she was required to show it; the court answered only that the jury had been provided the admitted evidence.
The jury convicted; the Court of Appeals affirmed without opinion. The Oregon Supreme Court granted review and reversed the conviction, holding the prosecutor’s voir dire remarks improperly suggested the state had additional evidence excluded by the rules of evidence and that the error was not harmless.

Issue	State's Argument	Banks' Argument	Held
Whether prosecutor’s voir dire remarks suggesting the rules of evidence limit what she can present improperly implied the state possessed additional (unpresented) evidence	Remarks were permissible general comments about evidentiary limits during voir dire and did not imply additional incriminating evidence	Remarks improperly suggested the state had evidence it would not present because of the rules of evidence, inviting juror speculation	Court: Remarks were improper; a prosecutor may not suggest the state has evidence beyond what is presented (followed Newburn/Wederski)
Whether any error was harmless	Remarks were brief, pre‑evidentiary, and standard jury instructions cured any prejudice	Remarks were prominent, related directly to the central issue (missing video), and trial court’s failure to cure or instruct left risk jurors would infer/discount missing video; error affected verdict	Court: Error was not harmless; reversal and remand required

State v. Newburn, 178 Or. 238 (Or. 1946) (prosecutor’s comment that only admissible evidence can be presented improperly implied the state possessed other incriminating evidence)
State v. Wederski, 230 Or. 57 (Or. 1962) (prosecutor’s suggestion of an expert witness not called was an open invitation to speculate and warranted mistrial)
State v. Amini, 331 Or. 384 (Or. 2000) (impartial jury must decide case only on evidence presented and legal instructions)
Holbrook v. Flynn, 475 U.S. 560 (U.S. 1986) (defendant entitled to verdict based solely on evidence introduced at trial)
Cler v. Providence Health Sys.-Oregon, 349 Or. 481 (Or. 2010) (counsel’s references to information outside the record are improper under OEC 103(3))
State v. Pinnell, 311 Or. 98 (Or. 1991) (improper to ask prospective juror questions that contain inadmissible matter)
Berger v. United States, 295 U.S. 78 (U.S. 1935) (prosecutor must refrain from improper methods; juries trust prosecutors’ obligations)
State v. Davis, 336 Or. 19 (Or. 2003) (harmless‑error standard: whether little likelihood the error affected the verdict)
State v. Pace, 187 Or. 498 (Or. 1949) (comments suggesting unavailable evidence invite jury speculation)
State v. Mims, 36 Or. 315 (Or. 1900) (permissible to comment on party’s failure to call witnesses who would naturally present evidence)
State v. Lincoln, 250 Or. 426 (Or. 1968) (permissible commentary on a party’s failure to call available witnesses)