State v. Strain

Two exceptions which permit the prosecution to address a defendant’s failure to present or contradict evidence are (1) affirmative defenses, and (2) when the defense holds the burden of proof for an issue it raises but fails to produce evidence. State v. Mayo, 303 Or App 525, 531-2, 465 P3d 267 (2020).

Defendant appealed his conviction of second-degree sexual abuse. On appeal, Defendant asserted the prosecution impermissibly shifted the state’s burden to prove guilt because the prosecution implied during closing arguments Defendant should have cross-examined specific witnesses. The State argued it was permissible for the prosecution to emphasize Defendant’s failure to cross-examine witnesses because Defendant at trial pointed out the state’s failure to produce evidence.  The two exceptions which permit the prosecution to address a defendant’s failure to present or contradict evidence are (1) affirmative defenses, and (2) when the defense holds the burden of proof for an issue it raises but fails to produce evidence. State v. Mayo, 303 Or App 525, 531-2, 465 P3d 267 (2020). The Court found the exceptions under Mayo did not apply to the prosecution’s commentary during closing arguments and thus resulted in impermissible burden-shifting. The Court held the errors were prejudicial to Defendant’s theory of the case and likely impacted the jury verdict. Reversed and Remanded.