State v. Strain

“[I]t [is] impermissible for the State to comment on [a] defendant’s failure to elicit additional evidence through cross-examination of the State’s witnesses” when doing so conflicts with the proper allocation of the burden of proof. State v. Strain, 374 Or 783, 790 (2026).

Defendant appealed a conviction for second-degree sexual abuse of H. H testified that,
after the second alleged assault, she texted A about what had happened; the State called A but
introduced no text messages. The State also played a pretext-call recording arranged by Deputy
Canning, the lead investigator, without calling Canning. In closing, Defendant argued that those omissions weakened the State’s case. The State responded that Defendant could have cross-
examined H and A, and the trial court overruled Defendant’s burden-shifting objection because he had “opened the door.”

Defendant assigned error to that ruling; the State maintained that its rebuttal was permissible. A court’s control of closing argument is constrained by Oregon’s impartial-jury right and federal fair-trial guarantees. State v. Banks, 367 Or 574, 582, 481 P3d 1275 (2021). Because the State must prove every element beyond a reasonable doubt, Defendant may identify evidentiary gaps without presenting contrary proof. State v. Burton, 373 Or 750, 762-63, 769, 571 P3d 736 (2025). Accordingly, “[i]t [is] impermissible for the State to comment on [a] defendant’s failure to elicit additional evidence through cross-examination of the State’s witnesses” when doing so conflicts with the proper allocation of the burden of proof. State v. Strain, 374 Or 783, 790 (2026). The Court held that the State crossed that boundary by faulting Defendant for failing to elicit different evidence, rather than showing that he could have produced the texts or called Canning. Even if Defendant’s closing argument was improper, the State’s remedy was to object and request relief, not answer with another improper argument. The error was prejudicial because the case depended on H’s credibility, and the trial court’s ruling appeared to endorse the suggestion that Defendant had to rebut the State’s proof. The decision of the Court of Appeals is affirmed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.