State v. Banks

A prosecutor may not make statements to a jury which imply that “additional evidence exists but cannot be presented” due to “our laws and rules of the court.” State v. Newburn, 178 Or 238, 241-42, 166 P2d 470 (1946). A trial court “accentuate[s] the error” if it overrules a defendant’s objection; reversal is required if the trial court fails to instruct the jury to disregard the prosecutor’s statement. Id.

Defendant appealed a conviction for one count of harassment.  Defendant assigned error to the trial court’s decision to overrule objections made by defense counsel about certain statements made by the prosecutor.  On appeal, defendant argued that the trial court erred when it allowed the prosecutor to make statements during voir dire to the jury that it was “not going to have all the facts,” and that “some things” were “not going to come into the trial.”  In response, the State argued that the prosecutor’s statements were not improper and, in the alternative, that the error was harmless.  A prosecutor may not make statements to a jury which imply that “additional evidence exists but cannot be presented” due to “our laws and rules of the court.”  State v. Newburn, 178 Or 238, 241-42, 166 P2d 470 (1946).  A trial court “accentuate[s] the error” if it overrules a defendant’s objection; reversal is required if the trial court fails to instruct the jury to disregard the prosecutor’s statement.  Id.  The Court found that “the prosecutor’s statements were prejudicial in two ways”: (1) “they encouraged speculation” by suggesting that more evidence existed, and (2) the absence of evidence created the risk that the jurors would assume that the state had evidence but was prevented from presenting it by the rules.  Further, the error was not harmless because the statements were “related to a central issue in the case.”  Thus, the Court held that the prosecutor’s statements were improper and not harmless.  Reversed and remanded to the trial court.