State v. StrainState v. Strain
Matthew Blythe, Deputy Public Defender, Oregon Public Defense Commission, Salem, argued the cause and filed the brief for respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section.
MASIH, J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
James, J., concurred and filed an opinion.
Bushong, J., dissented and filed an opinion.
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* On appeal from Washington County Circuit Court, Beth L. Roberts, Judge. 332 Or App 79, 548 P3d 169 (2024).
In this criminal case, defense counsel commented in closing argument on the state’s failure to present certain evidence, and the state responded that defense counsel could have elicited additional evidence on cross-examination. The issue in this case is whether the prosecutor’s comments impermissibly suggested to the jury that defendant had a burden to elicit additional evidence through cross-examination of the state’s witnesses. For the reasons explained below, we hold that the prosecutor’s comments were impermissible and prejudicial to the defense. We therefore reverse the trial court judgment and affirm the Court of Appeals decision.
I. BACKGROUND
The following facts are undisputed for purposes of review. The charges against defendant arose from allegations that he had sexually assaulted H twice. Defendant and H had previously shared an apartment and had a sexual relationship. However, by the time of the alleged incident, they no longer lived together. H had moved back into her mother’s house, and H alleged that the two sexual assaults occurred early one morning when defendant had stayed with her at her mother’s house. H did not immediately seek medical attention, and she did not report the incident to law enforcement until approximately 12 days later. After reporting the incident, H met with Washington County Sheriff’s Deputy Canning, who became the primary investigator on the case and helped H set up a pretext video call with defendant that Canning recorded. Ultimately, the state charged defendant with one count of first-degree sodomy,
In its case-in-chief, the state presented testimony from H about the alleged sexual assaults. H testified that, immediately following the second assault, she had texted her friend, A, and told her what had happened with defendant. A then came over, and they spoke further about the incident. A also testified on behalf of the state over
H also testified about her interactions with Deputy Canning, including that Canning had helped to set up the pretext video call with defendant. The state played the video recording of the pretext call, but it did not call Deputy Canning to testify.2 On cross-examination, defense counsel questioned H about her alleged injuries and pain; her failure to seek immediate medical attention; the 12-day delay in reporting to law enforcement; and Canning’s role as primary investigator, including with regard to the pretext video call.
During defendant’s closing argument, defense counsel pointed out some perceived gaps in the state’s evidence. In particular, as relevant to this appeal, defense counsel noted that, although H had testified on cross-examination that she had experienced “ten out of ten pain” for three days following the incident, she did not seek medical attention for at least 12 days, and the state had not presented any medical exam records or other evidence that substantiated her claims of injury. Defense counsel also argued to the jury that they had not seen any text messages between H and A “because they don’t exist,” and that, despite Deputy Canning being the lead investigating officer, “the [s]tate could not be bothered to bring that witness in” to testify and “stand up to cross-examination.” The prosecutor did not object to any of those statements.
Instead, during his rebuttal argument, the prosecutor responded that “there was a big deal made about what I’ll call the missing evidence.” In response to defense counsel’s
“You know [H] talked to [A], because [H] told you, and [A] came and told you. Did the defendant ever cross about that? No. Was there any cross-examination of [A] to inquire what did [H] tell you and what didn’t she tell you—”
(Emphasis added.) At that point, defense counsel objected:
“[DEFENSE COUNSEL:] Your Honor, I’m going to object to burden-shifting here.
“THE COURT: Thank you. Your—you’ve open[ed] the door on this. Thank you.”
The prosecutor then continued, without further objection:
“[PROSECUTOR:] He cross-examined her. He could ask or not ask her. [H] didn’t make it up. She talked to [A]. [A] came in and told you, ‘Not only did she tell me that day what happened to her, but what was her demeanor like.’
“* * * * *
“The last thing was about in regard[] to Deputy Canning and something being hidden, because they didn’t call Deputy Canning. [H] is the one that needs to get on the stand and tell you what happened. The officer can’t tell you what [H] said. [H] needs to tell you what was said and [H] ***came in *** and told you what happened. *** By the way, if there was something, again, there’s cross-examination. You cross-examine [H] about stuff that (inaudible) [g]rand [j]ury was different. No cross-examination (inaudible) you told the officer anything that was different. That’s another red herring.”
(Emphasis added.)3
On appeal, defendant argued that the prosecutor’s comments amounted to impermissible burden-shifting because they criticized defendant’s failure to cross-examine the state’s witnesses and invited the jury to speculate that defendant had more evidence than he was presenting to the jury.
The Court of Appeals agreed with defendant and reversed. State v. Strain, 332 Or App 79, 548 P3d 169 (2024).4 The court first explained that the state’s comments did not fall within the holding of State v. Mayo, 303 Or App 525, 531-32, 465 P3d 267 (2020), in which the Court of Appeals held that the state may comment on a defendant’s failure to present or contradict evidence when the defendant is asserting an affirmative defense or the defense raises an issue on which the defendant bears the initial burden of production but fails to present any evidence. Strain, 332 Or App at 81-82.
The Court of Appeals also rejected the state’s reliance on that court’s earlier decision in State v. Spieler, 269 Or App 623, 346 P3d 549 (2015). The state had argued that, under Spieler, when the defense implies that the state has failed to present evidence that would have supported the defense or undermined the state’s case, “the prosecutor can respond by noting that the defense ha[d] the ability to produce” that evidence. Id. at 642. The court rejected that argument, noting that, “unlike in Spieler, the prosecutor [in this case] did not argue that defendant could have produced the text messages or called the investigating officer to testify; instead, the prosecutor’s statements targeted defendant’s
II. DISCUSSION
The question presented on review is whether the prosecutor, during rebuttal argument, was permitted to respond to defendant’s argument about the absence of certain evidence by arguing that defendant could have elicited other evidence through cross-examination of the state’s witnesses. The trial court determined that defense counsel’s closing arguments had opened the door to such a response. A trial court’s decisions regarding control of jury argument are generally reviewed for abuse of discretion. R.J. Frank Realty, Inc. v. Heuvel, 284 Or 301, 306, 586 P2d 1123 (1978). However, in a criminal case, a court’s exercise of discretion is constrained by certain limitations that serve to protect the defendant’s constitutional right to trial by an impartial jury under
The parties’ arguments in this case implicate fundamental principles of a fair criminal trial, including a defendant’s right to testify or not testify, confrontation and cross-examination of witnesses, the presumption of innocence, and the burden of proof. We begin with a general discussion of those fundamental principles as they relate to the holdings in the cases relied on by the parties. As we will explain, we conclude that it was impermissible for the state to comment on the defendant’s failure to elicit additional evidence through cross-examination of the state’s witnesses in a manner that was inconsistent with the proper allocation of the burden of proof.
The law presumes that every defendant charged with a crime is innocent and requires the state to prove every element of the offense beyond a reasonable doubt. E.g., State v. Burton, 373 Or 750, 762, 571 P3d 736 (2025); see also State v. Rosasco, 103 Or 343, 357, 205 P 290 (1922) (explaining that “it devolves upon the prosecution to prove by evidence to the satisfaction of the trial jury beyond a reasonable doubt, that the defendant committed the crime charged in the indictment“);
A defendant has no obligation to testify. To the contrary,
An exception to that general rule arises when a defendant raises an affirmative defense. The law imposes the burden on a defendant to prove an affirmative defense by a preponderance of the evidence.
Those principles are also consistent with the special ethical considerations imposed on prosecutors by Standard 3-6.8 of the ABA Criminal Justice Standards for the Prosecution Function (2017).5 That standard includes the
Similarly, this court has stated—at least in the context of a civil case—that, if a party believes that their opponent has improperly commented on the party’s failure to present evidence, “the party is not without recourse” and “may timely object, and if necessary, move to strike or request a curative jury instruction.” Cler v. Providence Health System-Oregon, 349 Or 481, 489, 245 P3d 642 (2010). However, a party may not “remain[] silent during the opponent’s closing argument and then resort[] to self-help.” Id.; see also Walker v. Penner, 190 Or 542, 553, 227 P2d 316 (1951) (fact that counsel for one party has made improper argument does not permit opposing counsel “to commit a similar wrong, *** [i]n other words, two wrongs do not make a right” (internal quotation marks omitted)).
Accordingly, as we will explain, even when a prosecutor believes that defense counsel made an improper comment, a prosecutor’s response is limited; the prosecutor should respond, if at all, with an objection, not an improper argument of the state’s own.
B. Parties’ Arguments
Relying primarily on this court’s decision in State v. Lincoln, 250 Or 426, 443 P2d 178 (1968), which we examine
“(d) If the prosecutor presents rebuttal argument, the prosecutor may respond fairly to arguments made in the defense closing argument, but should not present or raise new issues. If the prosecutor believes the defense closing argument is or was improper, the prosecutor should timely object and request relief from the court, rather than respond with arguments that the prosecutor knows are improper.”
ABA Standard, Prosecution Function, 3-6.8.
Defendant responds that the rule articulated by the Court of Appeals in Spieler and Mayo comports with this court’s decisions in Lincoln and Wederski, and that the prosecutor’s comments in this case were improper because they did not directly respond to defendant’s arguments about the missing evidence. Instead, as the Court of Appeals concluded, they “speculated about other evidence defendant could have presented through cross-examination of the state’s witnesses,” something that the case law does not permit.
We acknowledge, as did the Court of Appeals in Spieler, that ”Wederski and Lincoln and their progeny are not easily susceptible to principled extension and application, not the least because the baseline precedents simply announced categorical propositions without circumstantial nuance or limitation,” and that “there are material procedural variations among the cases.” 269 Or App at 641. We turn, therefore, to an examination of our prior cases discussing the scope of permissible prosecutorial comments to explore further some of those material procedural variations and how they relate to the fundamental principles of a fair trial that we have identified above.6 As we will explain, although our prior cases have permitted certain comments in response to
C. Prior Cases
We begin with this court’s decision in Wederski. There, the defendant was charged with burglary after stealing, among other things, blank checks that were later forged. 230 Or at 58. In closing, defense counsel argued that the state had not presented any expert testimony to corroborate that it was the defendant’s handwriting on the checks. Id. at 59-60. In rebuttal, the prosecutor responded, in part, that its expert witness had “sat through the entire trial,” arguing that “there was no denial by [the defendant] that that was his handwriting or perhaps we might have used our expert witness.” Id. at 60. Defense counsel moved for a mistrial, arguing that the state’s comments invited the jury to consider what the witness might have testified to had he been called and “at least indirectly commented upon the defendant’s failure to take the stand.” Id. The trial court denied the motion, but this court reversed, concluding that the denial of defendant’s timely motion “was such an abuse of discretion as to require reversal.” Id. at 59. This court explained that, in addition to inviting the jury to consider evidence outside the record (the likely testimony of the state’s purported expert), the state had drawn attention to the defendant’s exercise of his right not to testify:
“The state’s reference to the defendant’s failure to deny the forgeries, innocently though it may have been intended, could not have gone unnoticed by a jury which had waited in vain through two days of trial for the defendant to take the stand so they could hear what he had to say about the case. Article I, § 12, of the Oregon Constitution guarantees the privilege of the defendant to remain silent. The privilege is meaningless if the state may refer to the defendant’s silence with impunity.”
Id. at 62. Of particular importance to this court was the failure of the trial court to correct the harmful effect of the prosecutor’s comments by providing a cautionary instruction to
Subsequently, in State v. Parker, 235 Or 366, 384 P2d 986 (1963), this court permitted limited prosecutorial comment in response to a defendant’s reference to evidence that had been excluded. There, the state’s case rested on the credibility of a witness. Id. at 376. The jury knew that the witness had testified against the defendant in his first trial, but she had since repudiated her testimony and then “repudiated her repudiation.” Id. at 375-76. The state had sought to introduce a tape recording of the witness’s previous statement to law enforcement, but defense counsel objected on the ground that the recording had not been properly authenticated. Id. at 372. The trial court sustained the objection but on different grounds, ruling that the recording was inadmissible as cumulative. Id. at 373. In closing, after learning that defense counsel had referenced the excluded recording in the presence of the jury, the prosecutor commented that the defendant had failed to attempt to impeach the witness with the recording. Id. at 374-375. Noting that the credibility of the witness “was in grave doubt,” this court concluded that the comment was permissible because “[t]he fact that defense counsel did not attempt to show inconsistency” in the witness’s statements permitted “the inference that the defense could not find any inconsistency.” Id. at 376. In reaching that conclusion, this court emphasized that the state had sought to introduce the evidence and that it had only been excluded as cumulative. Thus, there was not a basis for suggesting that the state was hiding the evidence because it was harmful.7
“‘I can’t tell the jury defense counsel wouldn’t play it. That is improper. The only thing I could do is take what is in the record, and that is that a tape recording was taken of her conversation by [law enforcement]. I can’t refer you—I can’t even begin to refer to the fact that we didn’t put it in.’”
Id. at 374. We agree with that articulation of the limitations on the state’s ability to comment had defense counsel not brought the excluded evidence to the jury’s attention after having moved to exclude it.
Finally, in Lincoln, this court held that a prosecutor’s comment on the defendant’s failure to call certain witnesses under the circumstances in that case did not amount to a comment on the defendant’s failure to testify. 250 Or at 427. There, the defendant was charged with burglary of a service station. Id. At trial, some of the officers who had arrested and investigated the defendant were in the courtroom, but the state did not call them to testify. Id. During closing argument, defense counsel argued that “the state had not disclosed all of the information it possessed because all of the officers with knowledge of the investigation were not called as witnesses.” Id. The prosecutor responded that “[c]ounsel knows if he wants to call any officers in the courtroom, he certainly can do that.” Id. (internal quotation marks omitted). On appeal, defendant argued that the prosecutor’s remarks amounted to a comment on his failure to testify. Id. This court affirmed in a short opinion, concluding:
“It is clear that the comment in question in no way related to defendant’s failure to take the witness stand. There is no rule which prevents the state from commenting on defendant’s failure to call witnesses other than the defendant which were available to him.”
Id. (emphasis added).
prosecutor is entitled to respond, *** so long as that response comports with the proper allocation of the burden of proof.” Spieler, 269 Or App at 642. Moreover, in Cler, this court clarified that rather than resort to self-help, a party should object to an improper comment by an opponent and request relief from the court. Cler, 349 Or at 489.
In sum, the case law relied on by the parties suggests that, when a defendant points out that the state has failed to present evidence, the state may respond that “the defense has the ability to produce it,” so long as the response comports with the proper allocation of proof, Spieler, 269 Or App at 642, and the record establishes that the missing evidence is available to the defendant, Parker, 235 Or at 374; Lincoln, 250 Or at 427. However, applying that principle to the facts of this case is not a perfect fit, because, as previously noted, our prior cases do not address the extent to which a prosecutor may respond to a defendant’s statement about missing evidence by noting that the defendant did not attempt to elicit different evidence through cross-examination of the state’s witnesses. As we will explain, the prosecutor’s response in this case did not comport with whatever limited response our case law permits.
D. Application to Facts of this Case
During defendant’s closing argument, defense counsel attacked the state’s case, arguing that the state had failed to present: (1) the alleged text messages between H and A; and (2) any testimony from Deputy Canning, the lead investigator in the case. During his rebuttal argument, the prosecutor responded that the state had made both H and
1. Text messages
As previously noted, in his closing argument, defense counsel referenced the alleged text messages exchanged between H and A:
“[The prosecutor] even mentioned it in his closing statement about these text messages with her friend. That was also not provided and, again, it wasn’t provided because they don’t exist. [H] is talking about how she was describing what had happened to a friend. She is a young woman. It would be hard to imagine this conversation about this occurring without some text messages being involved and *** there is no evidence of it. It simply does not exist.”
(Emphases added.)
The prosecutor did not object to defendant’s argument as improper. Instead, the prosecutor responded with the argument on rebuttal that defense counsel could have addressed the missing evidence by eliciting additional evidence by way of cross-examination:
“You know [H] talked to [A], because she told you, and [A] came and told you. Did the defendant ever cross about that? No. Was there any cross-examination of [A] to inquire what did she tell you and what didn’t she tell you—”
(Emphasis added.) Defense counsel timely objected to this statement as “burden-shifting.”
Below, the state contended that the prosecutor was permitted to comment on defendant’s failure to cross-examine A and H about the text messages because defendant had pointed out the state’s failure to produce that evidence, relying on Spieler. See 269 Or App at 642 (“[I]f defense counsel invites the factfinder to consider nonadmitted evidence as undermining the state’s case,” the prosecutor may respond that the defense has the ability to produce it, “so long as that response comports with the proper allocation
We agree with the state that a prosecutor may ask the jury to reject a defendant’s proposed inference about the evidentiary record so long as it comports with the proper allocation of the burden of proof. However, that is not all the prosecutor did here. As the Court of Appeals noted, “unlike in Spieler, the prosecutor did not argue that defendant could have produced the text messages[.]” Strain, 332 Or App at 82. And even if the prosecutor had properly confined his response, this case is still unlike Parker, 235 Or at 374, where the record established that the defense possessed the recording with the witness’s prior statement; there was nothing in the record here to indicate that the defense possessed the text messages.
The prosecutor might have objected to defendant’s argument about the missing text messages, but he did not do so. He did not argue to the court, for example, that defendant was improperly testifying or invoking an inference unsupported by the record about the nonexistence of the text messages. Defense counsel’s statement to the jury that the text messages “do not exist” was likely improper. We understand that defense counsel was likely attempting to challenge the credibility of H’s and A’s testimony by arguing that the state had not provided any evidence—the text messages—corroborating their testimony that they had texted immediately following the alleged incidents. However, in making that statement, defense counsel went beyond suggesting that the state’s failure to present any text messages raised a question of whether those text messages existed, and instead asserted that the text messages did not exist. That argument may have exceeded the scope of the evidence that had been presented and was akin to arguing facts not in evidence. See Burton, 373 Or at 768-69 (holding that defense counsel’s argument “point[ing] accurately to an absence of evidence” was permissible, but statement suggesting to the jury that it
Instead, the prosecutor’s comment on rebuttal, in essence, suggested improperly that defense counsel should have cross-examined the state’s witnesses to elicit additional evidence other than the text messages, i.e., the content of the conversation between H and A that purportedly occurred after the text messages were exchanged. Not only was the prosecutor arguing improperly that defendant had some burden to cross-examine A about evidence regarding factual issues on which the state bore the burden of proof, but the prosecutor was also aware that the content of the conversation had been excluded as inadmissible hearsay, and that A’s testimony had been limited to the fact of H’s contact with A following the incident and H’s demeanor during the subsequent conversation.9
As this court explained in Wederski and reiterated recently in Burton, a defendant has the right not to cross-examine the state’s witnesses and does not have to prove or disprove anything. See Wederski, 250 Or at 61 (“[T]he defendant had no duty to prove or disprove anything; * * * the jury could draw no inferences from the defendant’s failure to contradict any evidence in the case.“); Burton, 373 Or at 769 (explaining that “although defendant was entitled to cross-examine [the detective] about her investigation, he was under no obligation to do so or to prove or disprove anything to the jury“). Thus, we agree with the Court of Appeals that, whatever limited response may have been allowed, the prosecutor exceeded it here, and the trial court erred when it overruled defendant’s objection on the basis that defendant had “open[ed] the door” to the prosecutor’s response that defense counsel failed to cross-examine A or H.
In his closing, defense counsel also pointed out the state’s failure to call the lead investigator, Deputy Canning, as a witness:
“Finally, we heard from [H] that when she made this report, she worked with the lead investigating officer on this case, Deputy ** * Canning, a witness that the [s]tate chose not to provide to you. That the officer who responded to this, the officer who wrote all the police reports in this case, the one who took the statements from [H], the [s]tate could not be bothered to bring that witness in and testify. Bring that witness in, stand up to cross-examination and be able to provide to you all what is provided in every other criminal case, which is the testimony of the responding officer. It did not happen.”
The prosecutor responded again with a reference to a lack of cross-examination of H by defense counsel:
“The last thing was about in regard[] to Deputy Canning and something being hidden, because [we] didn’t call Deputy Canning. [H] is the one that needs to get on the stand and tell you what happened. The officer can’t tell you what [H] said. [H] needs to tell you what was said and [H] * ** came in * ** and told you what happened. *** By the way, if there was something, again, there’s cross-examination. You cross-examine [H] about stuff that (inaudible) [g]rand [j]ury was different. No cross-examination (inaudible) you told the officer anything that was different. That’s another red herring.”
(Emphasis added.) Defendant did not object to that statement.
Defendant contends, as he did below, that his argument is preserved because another objection on the basis of burden-shifting would have been futile. The state disagrees and argues that, in any event, the trial court did not err in allowing the prosecutor to make such an argument. The Court of Appeals concluded that the argument was preserved because defendant was not obligated to object again to the prosecutor’s additional comments, which came in direct succession to defendant’s previous objection that the trial court had overruled. Strain, 332 Or App at 80. We agree. We have explained that “[o]ur requirements respecting preservation
Defendant maintains that his argument was directed at the state’s burden of proof and questioned Deputy Canning’s credibility and the quality of her investigation. Defendant argues further that Canning was under investigation when the trial commenced, and that the prosecutor had removed Canning from his witness list to avoid having to provide defendant with any impeachment materials relating to that investigation—materials that would have been under the exclusive control of the state.10 Therefore, defendant asserts, he correctly invoked the missing witness inference.11 However, he also acknowledges that, to the extent
Here, the prosecutor did not simply object to defendant‘s missing witness argument or the statements about what happens “in every other case” as exceeding the record evidence. Nor did the prosecutor limit his response, like the prosecutor in Lincoln, to a statement that defense counsel could have called Canning as a witness. Instead, the prosecutor responded by pointing to defendant‘s failure to cross-examine H in an attempt to establish any inconsistencies between the statements that she had made to Canning or previously to the grand jury. Before this court, the state characterizes the prosecutor‘s response as “re-focusing the jury on the evidence before it,” i.e., H‘s testimony. But there is a difference between a prosecutor directing a jury back to the evidence that the state has presented as satisfying its burden of proof, on the one hand, and suggesting to the jury that the defense should have cross-examined a state‘s witness to prove its theory of the case, on the other. See Perez, 373 Or at 619 (Bushong, J., concurring) (noting that proper prosecutorial argument should “focus[] instead on whether the evidence in the case satisfies” the state‘s burden of proof).
Again, the prosecutor‘s response suggested that defendant had an obligation to elicit evidence about matters on which the state bore the burden of proof. It is not defendant‘s burden to cross-examine the state‘s witnesses to establish the extent of the state‘s investigation or the work undertaken by the lead investigator on the case, although they may certainly do so. As previously emphasized, defendant was under no obligation to cross-examine the state‘s
3. Prejudicial error
Having concluded that the trial court erred in permitting the prosecutor‘s comments, we next must determine whether the errors were harmless—that is, whether there was little likelihood that the trial court‘s errors tended to affect the verdict. E.g., State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).
The Court of Appeals concluded that the errors were prejudicial, reasoning that the crux of defendant‘s theory at trial was that the sexual interactions with H were consensual, and thus, “[w]hen the prosecutor was permitted to argue that defendant failed to cross-examine H or her friend in support of that theory, the state improperly undercut defendant‘s credibility in a case in which credibility was key[,]” which “had some likelihood of affecting the jury‘s verdict.” Strain, 332 Or App at 83 (internal quotation marks and citation omitted). In its briefing before this court, the state does not argue that any error in this case was harmless, and, in any event, we agree with the Court of Appeals that there was some likelihood that the trial court‘s errors affected the verdict.
Although the prosecutor‘s conduct in this case “did not involve calculated misconduct,” Wederski, 230 Or at 62, we must remember that, in the context of closing argument, counsel‘s primary goal is “to persuade the jury to adopt a particular view of the facts.” Ireland v. Mitchell, 226 Or 286, 295, 359 P 2d 894 (1961), overruled in part on other grounds by State v. Payne, 366 Or 588, 468 P3d 445 (2020). Here, defendant‘s overarching theory at trial
In sum, the prosecution‘s comments about defendant‘s failure to cross-examine the state‘s witnesses created a risk that jurors would infer that he had a responsibility to do so. We therefore cannot say that the prosecution‘s comments regarding the failure to cross-examine had little likelihood to have affected the jury‘s verdict.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Based on the record of what was said in closing argument in this case, I join in the majority. I write separately only to note that, in my view, the majority opinion should not be read as announcing a blanket prohibition against counsel ever commenting during closing argument on what opposing counsel did not ask a witness, whether in their direct or cross-examination. There may be a subtle distinction between pointing out what was not asked of a witness in a way that shifts the burden of proof and persuasion, as in this case, and pointing out what was not asked of a witness as a way of highlighting the flaws in an opposing party‘s strategy or theory of a case. That latter scenario is not present in this case. The appropriateness of that type of argument may be considered in the future but is not decided here.
BUSHONG, J., dissenting.
The majority opinion concludes that certain comments made by the prosecutor during closing argument impermissibly suggested to the jury that the defendant had the burden of proving the truth of his version of the events. I agree with that part of the opinion. I write separately for two reasons. First, I think this court should make it clear that prosecutors may not comment at all on a criminal defendant‘s decision to not call witnesses or present evidence or not question witnesses on cross-examination, except where the defendant bears the burden of proving an affirmative defense or producing evidence in support of a defense. Second, I dissent from the disposition in this case because I think that the error here was harmless.
I have previously written about the need for “clear guidance from this court on when a prosecutor‘s closing arguments are improper and when they are not.” State v. Perez, 373 Or 591, 616, 568 P3d 940 (2025) (Bushong, J., concurring). This case presents another opportunity for this court to provide such guidance. Unfortunately, the majority opinion declines to fully do so, in part because our prior cases, as previously interpreted by the Court of Appeals, are not clear and, in at least one respect, stray from bedrock principles of constitutional law.
The majority opinion declines to provide that clear guidance, concluding that it is foreclosed by our prior case law, primarily State v. Lincoln, 250 Or 426, 443 P2d 178 (1968). According to the majority opinion, if the defense points out that the state has failed to present evidence, our cases allow the state to respond that “the defense had the ability to produce it,” if that response comports with a proper allocation of the burden of proof and the record establishes “that the missing evidence is available to the defendant.” 374 Or at 797 (emphasis in original). I disagree.
In my view, any rule that allows a prosecutor to respond that the defense could have produced the missing evidence does not comport with the proper allocation of the burden of proof and other constitutional protections afforded a criminal defendant at trial, unless a statute places the burden of production or proof on the defendant. In addition, conditioning the prosecutor‘s comment on the availability of the evidence to the defense is unclear—it raises issues on what it means to be “available“—and it does not go far enough to protect those constitutional safeguards.
I acknowledge that Lincoln allowed a prosecutor to make such a comment where the missing evidence was available to the defendant under the circumstances presented in that case. The parties here disagree on how Lincoln applies in this case. The state contends that Lincoln allows
In my view, neither party is quite right. As I will explain, I think that Lincoln should be confined to the unusual facts presented in that case and that we should consider overruling Lincoln if the opportunity to do so is presented in another case.2
A. Lincoln Should Be Narrowly Applied, and We Should Consider Overruling It in a Future Case.
The defendant in Lincoln was convicted of the burglary of a service station. 250 Or at 427. The police apprehended the defendant and two other suspects at the scene of the crime. Id. At trial, the state called as witnesses some—but not all—of the police officers who had participated in the arrests and the resulting investigation. Id. In closing argument, defense counsel contended that the state had not met its burden of proving that the defendant was guilty beyond a reasonable doubt in part because the state did not call as witnesses all the police officers who had knowledge of the investigation. Id. In rebuttal, the prosecutor pointed out that some of those officers had been seated in the courtroom during trial, and argued, “if [defense counsel] wants to call any officers in the courtroom, he certainly can do that.” Id. at 427 (quoting the prosecutor‘s rebuttal argument). Defendant objected and moved for a mistrial, arguing that the prosecutor‘s comment amounted to impermissible burden shifting. The trial court denied the motion. Id.
In my view, those constitutional protections are implicated by any “rule” that allows the state to comment on a defendant‘s failure to call witnesses if those witnesses were “available” to the defendant. Thus, I would confine Lincoln to the facts presented in that case, that is, to only allow a prosecutor to comment on the defense‘s failure to call “any officers in the courtroom.” As so limited, the prosecutor‘s comments in this case were not permissible under Lincoln.
In a future case, I think we should consider overruling Lincoln to the extent that it permits a prosecutor to comment on a defendant‘s failure to call witnesses who were available in the courtroom. A better rule, in my view, would preclude the state from commenting on a defendant‘s failure to call witnesses, present evidence, or ask questions on cross-examination—regardless of whether the missing evidence or witnesses were “available” to defendant—except where the defendant has the burden of production or proof. That clear rule, in my view, follows from the constitutional protections afforded criminal defendants at trial.
The only justification one might offer for allowing a prosecutor to comment on a defendant‘s failure to call witnesses or present other “available” evidence after the defense counsel points out the state‘s failure to call witnesses or present evidence is that it just seems “fair” to allow the prosecutor to make such a comment. But that justification is insufficient. The constitutional limitations on what a prosecutor can and cannot do at trial do not provide—and were never meant to provide—a level playing field that treats the state the same as the defendant.
If the defense points out weaknesses in the state‘s case, a prosecutor may contend that it did not need to present additional evidence because the evidence the state has presented is all that it needed to meet its burden. That, in my view, is the only permissible response. It is not permissible for the prosecutor to argue that the defense could have called witnesses, or presented other evidence, or asked additional questions, if the defense really thought the jury needed to hear such evidence. To the extent that Lincoln would allow a prosecutor to make such arguments, that case should be reconsidered and possibly overruled.
B. The Error Here Was Harmless
My second reason for writing separately is that, although I agree with the majority opinion that the prosecutor‘s comments were improper, I believe that the error here was harmless. Under
In this case, the “particular error” involved the prosecutor‘s improper comments that impermissibly suggested
The trial court instructed the jury on multiple occasions—and the prosecutor acknowledged on multiple occasions—that defendant was presumed innocent and that the state had the burden of proving defendant‘s guilt beyond a reasonable doubt. The court gave that instruction preliminarily, before voir dire, and then twice after voir dire before opening statements. The prosecutor acknowledged in his opening statement that the burden was on the state, indicating after summarizing the evidence and the charges that “the state will prove these six counts to you beyond a reasonable doubt[.]” The prosecutor began his closing argument by stating that there were six charges for the jury to decide, “which we have proven to you beyond a reasonable doubt.” The prosecutor concluded his closing argument by stating that “we‘ve proven [the charges] to you beyond a reasonable doubt.”
Defense counsel, in his closing argument, reiterated multiple times that the jury‘s role under the law “is to determine whether or not the State has proven this case beyond a reasonable doubt.” In his rebuttal closing, the prosecutor stated multiple times that the jury‘s job was to decide from the evidence whether the state had met its burden of proving defendant‘s guilt beyond a reasonable doubt. According to the prosecutor, “[t]hat‘s what the state‘s burden is and we have met that in this case.” The prosecutor concluded by arguing that the state has proven its case “beyond a reasonable doubt.”
During the final jury instructions after closing, the court instructed the jury:
“The defendant is innocent unless and until the defendant is proven guilty beyond a reasonable doubt. The burden is on the state to prove the guilt of the defendant beyond a reasonable doubt.”
There was no suggestion by counsel or the court at any time that the defendant had the burden of proof on anything at issue in the trial. Under the circumstances, there was no likelihood, in my view, that the prosecutor‘s improper comments during the rebuttal closing led the jury to think that the burden had shifted to defendant on any issue in dispute in this case.
For that reason, although I agree with the majority opinion that the prosecutor‘s comments impermissibly suggested that the defendant had the burden of proof, I respectfully dissent from the disposition of this case.
Notes
“(a) In closing argument to a jury (or to a judge sitting as trier of fact), the prosecutor should present arguments and a fair summary of the evidence that proves the defendant guilty beyond reasonable doubt. The prosecutor may argue all reasonable inferences from the evidence in the record, unless the prosecutor knows an inference to be false. The prosecutor should, to the extent time permits, review the evidence in the record before presenting closing argument. The prosecutor should not knowingly misstate the evidence in the record, or argue inferences that the prosecutor knows have no good-faith support in the record. The prosecutor should scrupulously avoid any reference to a defendant’s decision not to testify.
“(b) The prosecutor should not argue in terms of counsel’s personal opinion, and should not imply special or secret knowledge of the truth or of witness credibility.
“(c) The prosecutor should not make arguments calculated to appeal to improper prejudices of the trier of fact. The prosecutor should make only those arguments that are consistent with the trier’s duty to decide the case on the evidence, and should not seek to divert the trier from that duty.
“[j]ust as the prosecutor cannot invite the factfinder to consider nonadmitted evidence in aid of the state’s case, if defense counsel invites the factfinder to consider nonadmitted evidence as undermining the state’s case, the