326 Or. App. 308
Or. Ct. App.2023Background
- Defendant convicted in Linn County of second-degree disorderly conduct, second-degree criminal trespass, harassment, and resisting arrest after trial.
- At rebuttal, the prosecutor told jurors the right to trial should be celebrated and urged them to "return a guilty verdict to every charge," implying trials do not always reflect factual controversy.
- Defendant did not object to the prosecutor’s rebuttal at trial.
- On appeal, defendant argued the prosecutor’s remarks impermissibly commented on the defendant’s exercise of the constitutional right to trial and distorted the presumption of innocence.
- The Court of Appeals concluded the statements were plainly improper, rose to the level of legal error because a curative instruction would not have been sufficient, and reversed and remanded the convictions.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the prosecutor’s rebuttal comments amounted to plain error forfeited by failure to object | Prosecutor’s comments were permissible advocacy, reflected the state’s confidence, and were not so prejudicial as to deny a fair trial | Comments impermissibly criticized/inferred disdain for defendant’s exercise of right to trial and distorted presumption of innocence, warranting reversal | Court held comments were plainly improper and prejudicial; reversed and remanded |
| Whether the improper comments were legal error not cured by instruction (i.e., so prejudicial that an instruction would not suffice) | Any error was harmless or would have been cured by an instruction | The comments struck at the presumption of innocence and were made in rebuttal, so curative instruction would not have been sufficient | Court concluded error was of law and not curable; exercised discretion to correct and reversed |
Key Cases Cited
- State v. Pierpoint, 325 Or App 298 (discussing plain-error framework for prosecutorial misconduct)
- State v. Chitwood, 370 Or 305 (explaining when prosecutor comments become legal error not amenable to curative instruction)
- State v. Soprych, 318 Or App 306 (holding prosecutor’s remarks improperly suggested that exercising the right to trial indicates guilt and distorts presumption of innocence)