State v. Howard

In arguing to the jury, a prosecutor “must not inappropriately characterize the jury’s factfinding function in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard or burden of proof."

Defendant appealed a conviction of multiple charges. The defendant assigned error to the trial courts ruling over defendants objection of the prosecutors statements. In arguing to the jury, a prosecutor “must not inappropriately characterize the jury’s factfinding function in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard or burden of proof.” State v. Totland, 296 Or App 527, 531, 438 P3d 399, rev den, 365 Or 502 (2019). The Court reasoned that the prosecutor’s statements invited jurors to consider that lack of evidence from the defendant was evidence of guilt or wrong-doing. The Court explained that the this exchange likely undermined the jury’s understanding of the burden of proof, therefore the trial court erred in ruling over the defendant’s objection. Reversed and Remanded.