- Court: Oregon Court of Appeals
- Area(s) of Law: Criminal Law
- Date Filed: 04-17-2024
- Case #: A179175
- Judge(s)/Court Below: Tookey, PJ; Egan, J; Kamins, J
- Full Text Opinion
Appellant appeals their conviction of second-degree sexual abuse, asserting it was error for the trial court to allow the prosecutor to present an argument in closing that implied the defendant should have cross-examined specific witnesses. The appellant argues that allowing closing arguments which emphasize the defendant’s failure to cross-examine certain witnesses impermissibly shifts the state’s burden to prove guilt beyond a reasonable doubt onto the defendant. The state contends that the prosecutor was permitted to comment on the defendant’s failure to present evidence because the defendant had pointed out the state’s failure to produce evidence. The court notes that while exceptions to the prohibition of a prosecutor to address a failure of the defendant to contradict or present evidence exist under Mayo, none of those exceptions are implicated in this appeal. Specific to the state’s argument, the claims of the defendant enabled the prosecutor to observe the defendant’s ability to produce evidence they claimed the state failed to, but not to make disconnected claims that the defendant failed to produce evidence by not cross-examining a witness. Observing that credibility was key in this case, the court held that allowing the prosecutor’s closing arguments was not harmless. Reversed and Remanded.