333 P.3d 1163
Or. Ct. App.2014Background
- DUII conviction following trial where defendant invoked right to remain silent during police questioning.
- Pretrial ruling excluded the right-to-silence evidence; trial court allowed it via redirected testimony and a curative instruction.
- Witness Martinson testified that defendant said “Don’t want to say anything incriminating,” after being asked when she stopped drinking.
- Defendant moved for mistrial; court denied, citing inadvertence, curative instruction, and strength of other evidence.
- Defendant was convicted on DUII, reckless driving, and failure to perform duties when property damaged; sentence included jail time and probation.
- Court reverses and remands for mistrial due to prejudicial impact of the invocation evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether admission of invocation evidence denied a fair trial | Veatch/Smallwood support admissibility concerns | Admission prejudiced by inference of guilt | Mistrial required; prejudice found |
| Was the curative instruction sufficient to cure prejudice | Curative instruction adequate given other evidence | Instruction insufficient to negate inference | Insufficient; mistrial appropriate |
| Whether denial of mistrial was an abuse of discretion | Trial evidence outweighed prejudice | Prejudice tainted trial, warranting mistrial | Abuse of discretion; reversal and remand |
Key Cases Cited
- State v. Veatch, 223 Or App 444 (2008) (prejudice from improper comment on right to remain silent; curative instruction often insufficient)
- State v. Smallwood, 277 Or 503 (1977) (prejudice from exercising constitutional rights; context matters)
- State v. White, 303 Or 333 (1987) (curative instruction must do more than blandly tell to forget silence)
- State v. Larson, 325 Or 15 (1997) (trial court best positioned to assess impact on jury)
- State v. Farrar, 309 Or 132 (1990) (adverse inferences from defendant’s silence discussed)
- Smith v. State, 310 Or 1 (1990) (prejudice assessment and curative instructions)
- Lakeside v. State of Oregon, 435 US 333 (1978) (curative instruction must do more than tell to disregard 'white bear')
- White v. State, 303 Or 337 (1987) (instruction ineffective if bland; must negate inference)
- Veatch, supra, 223 Or App 459 (2008) (analysis of whether curative instruction unrings the bell)