State v. Burton

Absence of evidence may be argued to show reasonable doubt, but evidence that is not in the record with the potential to mislead the jury may not be.

The defendant appealed the decisions of the lower courts on the narrow issue of whether his defense counsel is permitted to mention the absence of evidence in closing arguments when the defense counsel knew the evidence exists but simply wasn’t introduced at trial. The defendant was charged with second degree sexual abuse and third degree rape based on allegations that he had sexual relations with his girlfriend’s 14 year old daughter. While investigating these allegations, the police had difficulty tracking down the defendant and eventually had a phone conversation with him where he made no admissions. At trial, the phone call evidence was not introduced. The jury found the defendant guilty and the Court of Appeals affirmed.
On appeal, the defendant argued that his right to a fair trial was undermined when the trial court restricted his closing argument that attempted to highlight the state’s failure to introduce important evidence (the phone call). The Oregon Supreme Court found that while attorneys have broad latitude to argue evidence and suggest reasonable inferences about evidence, they are not permitted to argue facts that are not in evidence that invite the jury to speculate without evidentiary support. The Court held that defense counsel was permitted to say that the jury did not hear certain evidence, but they were not permitted to suggest that that evidence did not exist, because that might mislead the jury, especially since the defense knew that the phone interview had occurred. The Court determined that the trial court erred in limiting an instance where the defense counsel accurately described the evidence but concluded that the error was harmless because it was unlikely to impact the jury’s decision. The Oregon Supreme Court affirmed the lower court decisions.