State v. Arena

“... a prosecutor may comment on a defendant's failure to present evidence (1) of affirmative defenses, and (2) when the defense has raised an issue on which the defendant bears the initial burden of production but fails to present any evidence.” State v. Strain, 332 Or App 79.

Defendant appealed his convictions for multiple sex offenses. He raised six assignments of error arguing that the trial court should have sua sponte declared a mistrial because the prosecutor’s statements constituted impermissible burden shifting by suggesting that the defendant should have called witnesses in support of his theory of defense. “... a prosecutor may comment on a defendant's failure to present evidence (1) of affirmative defenses, and (2) when the defense has raised an issue on which the defendant bears the initial burden of production but fails to present any evidence.” The Court found that the prosecutor's comments were not in response to any defense argument that the state had failed to provide evidence, nor did they pertain to an affirmative defense or a legal issue on which the defense had the burden of production. The Court reasoned that the statements thus fell outside the two established permissible categories for such comments and since they occurred during rebuttal, it was highly prejudicial because this case hinged on the credibility of witnesses. The Court held that these remarks improperly suggested the defense was obligated to present further evidence or witnesses and constituted a misstatement of the law and could have potentially confused the jury. REVERSED.