State v. Camirand

“The [Supreme Court] observed that references to facts outside the record can be prejudicial in two ways: First, they encourage the jury to speculate about evidence beyond that presented at trial; and, second, they ‘provide a preemptive explanation for the state’s failure to present evidence that the jury might expect it to present.’”State v.  Banks, 367 Or 574, 481 P3d 1275 (2021).

In State v. Camirand (Camirand I), Defendant appealed convictions of robbery and coercion. Defendant assigned error to the trial court’s decision not to strike the prosecution’s statements for referring to facts, not evidence. On appeal, Defendant argued that the prosecutor’s references to DNA testing were prejudicial to Defendant. The State argued, and the Appellate Court agreed, that the statements to the facts not in evidence were unlikely to affect the verdict, and therefore the error was harmless. “The [Supreme Court] observed that references to facts outside the record can be prejudicial in two ways: First, they encourage the jury to speculate about evidence beyond that presented at trial; and, second, they ‘provide a preemptive explanation for the state’s failure to present evidence that the jury might expect it to present.’”State v.  Banks, 367 Or 574, 481 P3d 1275 (2021). On remand (Camirand II), the Court determined that in light of the new rule pronounced in Banks, Defendant was prejudiced and that the prosecutor’s statements likely did affect the outcome. To that end, the Court determined that the jury instructions were not sufficient to outweigh the improper argument and that the argument likely covered up important weaknesses in the State’s case. Reversed and remanded.