State v. Soprych, 507 P.3d 276

Defendant Michael Soprych was tried and convicted of unlawful possession of methamphetamine and possession of a schedule IV controlled substance.
During voir dire, the prosecutor posed a hypothetical in which a person openly admits stealing a handbag yet still has a right to a trial, asking jurors if they were "okay with that."
Defense objected at sidebar and moved for a mistrial after jury selection; the trial court denied the mistrial and allowed the questioning to continue.
Soprych appealed, arguing the prosecutor’s voir dire comments improperly commented on his exercise of the constitutional right to a trial and undermined the presumption of innocence.
The Court of Appeals held the prosecutor’s hypothetical was a thinly veiled, impermissible comment on the defendant’s invocation of his right to a trial, produced an adverse inference of guilt, and deprived Soprych of a fair trial.
The appellate court reversed the conviction and remanded for further proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the prosecutor’s voir dire hypothetical improperly commented on defendant’s invocation of the right to a trial and warranted a mistrial	The State: voir dire discussion of constitutional rights was proper and not an improper comment on guilt	Soprych: hypothetical drew a negative inference from exercising the right to a trial, undermining presumption of innocence and requiring mistrial	The court: the hypothetical was an impermissible comment; an adverse inference was inescapable; denying mistrial was an abuse of discretion; reversed and remanded
Whether any error was harmless under state and federal standards	The State: any error was harmless	Soprych: error was prejudicial and not harmless	The court: error undermined presumption of innocence and was not harmless under applicable state and federal standards

State v. Worth, 231 Or App 69 (2009) (prosecutorial misstatements of presumption of innocence can require mistrial)
Morgan v. Illinois, 504 U.S. 719 (1992) (right to a fair trial by an impartial jury guaranteed)
Griffin v. California, 380 U.S. 609 (1965) (adverse comment on defendant's silence violates Fifth Amendment)
State v. Smallwood, 277 Or 503 (1977) (impermissible to admit or comment on exercise of constitutional rights when jury may draw prejudicial inferences)
State v. Pinnell, 311 Or 98 (1991) (condemns using voir dire to argue prosecution’s case or present inadmissible factual matter by innuendo)
Delaware v. Van Arsdall, 475 U.S. 673 (1986) (standard for harmlessness of constitutional error)
State v. Banks, 367 Or 574 (2021) (recognizes voir dire prosecutorial error can affect the trial outcome)