574
Argued and submitted November 16, 2020; decision of Court of Appeals
reversed, judgment of circuit court reversed, and case remanded to circuit court
for further proceedings February 25, 2021
STATE OF OREGON,
Respondent on Review,
v.
DAEZHAR OMANI BANKS,
aka Daezhar Olmani Banks,
Petitioner on Review.
(CC 17CR64677); (CA A168210); (SC S067549)
481 P3d 1275
During voir dire, the prosecutor stated, over defense counsel’s objections, that
“the rules of evidence” limited what she could present to the jury, that “some
things are not going to come into the trial today” and that the jury was “not going
to have all the facts.” Defendant was convicted of the single charged crime, and
the Court of Appeals affirmed without opinion. Held: (1) The trial court erred
in overruling defense counsel’s objections to the prosecutor’s statements, which
improperly suggested that the state possessed evidence against defendant that
it was not able to present at trial, and (2) the error was not harmless because the
statements related to a central issue on which the jury was focused and undercut
a part of defendant’s defense.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further
proceedings.
En Banc
On review from the Court of Appeals.*
Sarah De La Cruz, Deputy Public Defender, Office of
Public Defense Services, argued the cause and filed the
briefs for petitioner on review. Also on the brief was Ernest
G. Lannet, Chief Defender.
Joanna Hershey, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
______________
* Appeal from Multnomah County Circuit Court, Leslie Bottomly, Judge.
301 Or App 853,
455 P3d 1046 (2020).
Cite as
367 Or 574 (2021) 575
DUNCAN, J.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
576 State v. Banks
DUNCAN, J.
In this criminal case, the state charged defendant
with harassment based on an incident at a mobile phone
store. Before trial, the state provided defendant with a video
from the store’s security system, but the video did not show
the alleged harassment. During voir dire, the prosecutor
told the prospective jurors, over defense counsel’s objections,
that “the rules of evidence” limited what she could present
to the jury, that “some things are not going to come into the
trial today,” and that the jury was “not going to have all the
facts.” In support of his objections, defense counsel argued
that the prosecutor’s statements implied “that there’s more
video, but for some reason that video didn’t get to come in by
the rules of evidence.” Defense counsel asked the trial court
to instruct the jury that it should not assume that “the rules
of evidence have precluded any evidence at this point.” The
court denied defense counsel’s request.
During the trial, defense counsel disputed that defendant had committed the alleged harassment and argued,
among other things, that, although the store had three
security cameras and one of its employees had testified
that the cameras would have captured the full incident, the
state had failed to produce video of the alleged harassment.
During deliberations, the jury sent questions to the court,
asking if the prosecutor knew whether there was video of
the alleged harassment and, if so, whether the prosecutor was required to show it at trial. The court responded
by telling the jury that it had been “provided the admitted evidence in this case” and that the court was “unable
to provide further response.” The jury found defendant
guilty.
Defendant appealed, arguing that the trial court
committed reversible error by overruling defense counsel’s
objections and denying his requested jury instruction. The
Court of Appeals affirmed without opinion. State v. Banks,
301 Or App 853,
455 P3d 1046 (2020). On defendant’s petition, we allowed review. For the reasons explained below,
we conclude that the trial court erred by overruling defense
counsel’s objections and that the error was not harmless.
Therefore, we reverse the Court of Appeals’ decision and the
Cite as
367 Or 574 (2021) 577
trial court’s judgment, and we remand the case to the trial
court.1
HISTORICAL AND PROCEDURAL FACTS
The state charged defendant with one count of
harassment. Harassment is defined by ORS 166.065, which
provides, in part, “A person commits the crime of harassment if the person … [h]arasses or annoys another person
by … [s]ubjecting such other person to offensive physical
contact.” The state based the charge on an incident at a
T-Mobile store, during which, according to the state, defendant got into a disagreement with another customer, Trees,
and swatted her ponytail.
Before trial, the state provided defendant with discovery, including a video from the store’s security system.
The video did not show defendant swatting Trees’s ponytail.
During voir dire, the prosecutor discussed the
requirement that the state prove its case beyond a reasonable doubt. To illustrate the amount of evidence required,
the prosecutor used a hypothetical example. She described a
situation in which there was evidence that a child had eaten
cupcakes, and she asked the prospective jurors whether the
evidence was sufficient for them to find, beyond a reasonable doubt, that the child had eaten the cupcakes. One of
the jurors raised the possibility that the jurors might not
have all the information necessary to correctly determine
whether the child had eaten the cupcakes. In response, the
prosecutor told the jurors that the “rules of evidence” limit
what she can present:
“Okay, okay. So that kind of brings up a really good topic
of discussion for you all today, and it’s something to keep
in mind throughout the trial. There is this thing called the
rules of evidence in Oregon. And that kind of discusses and
gives me parameters of what I can present to you.”
(Emphases added.) Defense counsel objected, asserting that
the prosecutor was “getting into discussing the law,” specifically,
1
Because we conclude that the trial court erred by overruling defense counsel’s objections and that that error requires reversal, we need not, and do not,
address defendant’s argument that the trial court also erred by failing to give
defense counsel’s requested jury instruction.
578 State v. Banks
the “rules of evidence.” The trial court told the prosecutor to
“go ahead.” The prosecutor continued:
“[PROSECUTOR]: So with the rules of evidence, it’s
kind of a rule book for me and [defense counsel] about what
we can talk about and present to you. And some things are
not going to be coming in.
“[DEFENSE COUNSEL]: Objection, Your Honor. She’s
implying—
“THE COURT: Overruled.
“[PROSECUTOR]: So some things are not going to
come into the trial today. And as jurors, you are the arbiter
of the facts. Does anyone kind of know what that means,
arbiter of the facts? Anyone kind of—? Okay, what does it
mean?
“JUROR: The people that are going to make the
decision.
“[PROSECUTOR]: “Yes, it does. It does mean that. So
you’re going to be the person deciding the facts of the case
today. And the nature of evidence is that you’re not going to
have all the facts. And as jurors, you’re not really allowed to
speculate.”
(Emphases added.) The prosecutor then told the prospective
jurors that the jury’s role was to “listen to the facts that
are presented, and with those facts only, that’s what you’re
going to think about in trial today.”
After the lawyers finished questioning them, the
prospective jurors left the courtroom and defense counsel
requested a curative instruction, stating:
“Your Honor, I would like to address the voir dire that
was presented by the prosecution. In our case here, there’s
evidence that they don’t have; that’s why it is not coming
in. But she made the implication that it’s the rules of evidence that kept it out. And I think a curative instruction
at this time would be appropriate to the jurors that do get
selected.”
Defense counsel explained:
“[W]hen the prosecution was giving her voir dire, she
asked—she told the jurors that the rules of evidence do
Cite as 367 Or 574 (2021) 579
not allow all evidence to come in. Some of that evidence
is kept out. So you’re not going to be able to see all of
the evidence. And now she’s going to be implying—that
implies that when we get to the video, and we show the
video, it’s implying that there’s more video, but for some
reason that video didn’t get to come in by the rules of
evidence.”
The trial court said that it would “not give a curative instruction before we pick our jury” but that the court and the lawyers could discuss defense counsel’s concern later.
After the jury was selected, the trial court read
standard precautionary jury instructions. Among other
instructions, the court gave the following instruction based
on Uniform Criminal Jury Instruction 1004:
“As a judge, I’m gatekeeper regarding evidence. I determine what the law allows to be evidence. In effect, the law
considers anything that is not evidence to be unreliable. That
is why we do not consider nonevidence in deciding the facts.
But just because something becomes evidence does not
mean that it is necessarily reliable. You are ultimately—
you are the determiner of what is reliable or what is believable or not believable. Let’s see. You must decide what evidence is believable and how believable or persuasive any
particular piece of evidence is.
“Evidence consists of testimony of witnesses and exhibits that are admitted into evidence. Testimony is what
a witness, who has sworn or affirmed to answer questions truthfully, says while being examined as a witness.
Exhibits are physical objects, such as photographs, letters, and other physical items. You’ll be able to examine
admitted exhibits during your deliberations. You may draw
reasonable inferences from the evidence, but you’re not to
guess or speculate.”
(Emphasis added.)
The lawyers then made their opening statements.
The prosecutor did not mention the video. But defense counsel told the jurors that there were multiple cameras in the
T-Mobile store but that they would not see any video showing the alleged harassment because none had been provided
and that they would “get to evaluate that.”
580 State v. Banks
After the opening statements, the trial court asked
defense counsel to reiterate his concern about the prosecutor’s voir dire. Defense counsel replied:
“During voir dire, [the prosecutor] began to talk about
the rules of evidence, how the rules of evidence exclude relevant evidence sometimes. And I believe that causes the
jurors to begin to impermissibly wonder about what evidence is out there that’s not being presented that is in favor
of the state.”
Defense counsel told the court that he was “going to hammer
hard on the fact that there’s no video evidence” of the alleged
harassment. He explained that one of his arguments was
going to be that the state “did not make its best effort to get
all the video,” and, therefore, “we can’t have the jury assuming that there actually is evidence out there that is favorable to the state.” Because the trial court had not excluded
any evidence that the state intended to offer, defense counsel asked the court to instruct the jury that it was “not to
assume that the rules of evidence have precluded any evidence at this point.” The trial court declined to do so.
During the evidentiary part of the trial, there was
undisputed evidence that, on the date of the alleged harassment, defendant drove to a T-Mobile store with two acquaintances. Defendant went into the store to pay his mobile
phone bill. While he was speaking to a store employee, Trees
was standing at the same counter and speaking to another
employee. One of defendant’s acquaintances came into the
store, stole a pair of headphones, and left.
What happened next was disputed at trial. The
state’s evidence was that Trees reported the theft to a store
employee, which made defendant angry. The state’s witnesses testified that defendant raised his voice, used hostile and discriminatory language against Trees, and swatted her ponytail. But defendant testified that it was Trees
who used hostile and discriminatory language against
him; he denied using such language and swatting Trees’s
ponytail.
Although the parties disputed what happened
between defendant and Trees, there was undisputed evidence
that, after their interaction, defendant’s two acquaintances
Cite as 367 Or 574 (2021) 581
got into a physical altercation with Trees and the police
were called.
Cummins, the T-Mobile store manager, testified for
the state. On cross-examination, Cummins testified that
there were “a lot of video cameras in the store,” including
one focused on the counter where defendant and Trees had
been standing. Cummins assumed that there would be
“video of everything.” Another T-Mobile employee, Brown,
agreed that “there are cameras that see pretty much everything that goes on inside the store” and “they would show”
what happened between defendant and Trees.
When the police investigated the incident, Cummins
gave them a statement and referred them to the company’s
loss prevention department to obtain a copy of video of the
incident. Before trial, Cummins spoke to the prosecutor but
refused to speak to defense counsel. Brown also refused to
speak with defense counsel.
As mentioned, during discovery, the state had provided defense counsel with a video from the T-Mobile store’s
surveillance system but the video did not show defendant
swatting Trees’s ponytail. The state did not introduce the
video into evidence at trial, but defense counsel did. Trees
testified that the video did not show the entire incident.2
In closing argument, defense counsel argued,
among other things, that the state had failed to carry its
burden of proof. He argued that the state had “the power to
request” video of the alleged harassment but that it had “not
produced that evidence.” Instead, he argued, the state chose
to rely solely on witnesses’ memories “from nine months ago
in a heated situation.” He argued that the state was asking
the jury to believe that there was video evidence that supported its case:
“Where’s the video? ‘I have the video. It’s available. Just
believe us.’ So the state’s asking (indiscernible) video. ‘Sure
there’s video. Forget about that. Trust the people. Don’t
trust your lying eyes.’ ”
2
The prosecutor told the trial court that she did not know why the state did
not have video that showed the alleged harassment. Defense counsel told the
trial court that his investigator had attempted to obtain video from T-Mobile, but
“couldn’t get anything, even a statement from them.”
582 State v. Banks
Defense counsel concluded by emphasizing that the state
“did not provide any video” of the alleged harassment and
urging the jury to conclude that the state had not proven its
case beyond a reasonable doubt.
During deliberations, the jury submitted two written questions to the trial court, asking “Does the prosecutor
know if the video [of the] hair smack exists?” and “If they
know it exists, are they required to show it in trial?” The
court responded, “You have been provided the admitted evidence in this case. I will instruct you we are unable to provide further response to this specific question.”
As mentioned, the jury found defendant guilty,
defendant appealed, the Court of Appeals affirmed without opinion, and we allowed defendant’s petition for review.
For the reasons explained below, we conclude that the trial
court erred by overruling defense counsel’s objections to the
prosecutor’s statements during voir dire and that the error
was not harmless.
ANALYSIS
Under both the state and federal constitutions,
a criminal defendant has a constitutional right to a trial
by an impartial jury, and that right includes the right to
a verdict based solely on the evidence presented at trial.
State v. Amini, 331 Or 384, 391,
15 P3d 541 (2000); Holbrook
v. Flynn,
475 US 560, 567,
106 S Ct 1340,
89 L Ed 2d 525
(1986). As this court has explained regarding the right to
an impartial jury under Article I, section 11, of the Oregon
Constitution, “the guarantee of trial by an ‘impartial jury’
means a trial by a jury that is not biased in favor of or
against either party, but is influenced in making its decision only by evidence produced at trial and legal standards
provided by the trial court.” Amini, 331 Or at 391. Likewise,
the Supreme Court has explained that, “[c]entral to the
right to a fair trial, guaranteed by the Sixth and Fourteenth
Amendments, is the principle that one accused of a crime
is entitled to have his guilt or innocence determined solely
based on the evidence introduced at trial.” Holbrook,
475 US at 567 (internal quotation marks and citations
omitted).
Cite as
367 Or 574 (2021) 583
Consequently, this court has ruled that a prosecutor may not suggest to a jury that the state has evidence
against a defendant beyond that presented at trial. The
cases of State v. Newburn, 178 Or 238,
166 P2d 470 (1946),
and State v. Wederski,
230 Or 57,
368 P2d 393 (1962), are
illustrative. In each of those cases, this court held that a
prosecutor’s statement that the state’s ability to present evidence was limited by the rules of evidence was improper and
required reversal.
In Newburn, the prosecutor told the jury that laws
and rules limit what evidence the state can present:
“ ‘The state can only present legal testimony. That is
the only testimony that is admissible under our laws and
rules of this court, and out of all of the facts in the District
Attorney’s office that we may have, we can only present such
evidence as is admissible.’ ”
178 Or at 241 (emphasis in Newburn). The defendant objected
to the prosecutor’s statement “ ‘as intimating to the jury that
the District Attorney had other evidence, though inadmissible, which tended to show the defendant’s guilt and implied
by such remarks an inference of defendant’s guilt upon evidence which was inadmissible[.]’ ”
Id. The trial court overruled the objection.
Id.
The defendant was convicted and appealed. On
appeal, this court held that the prosecutor’s statement was
“improper and was prejudicial to the rights” of the defendant because it suggested that the state had evidence that it
could not introduce. Id. It injected “extrinsic and prejudicial
matter” into the trial.
Id. at 241-42. In addition, this court
observed that the trial court’s overruling of the defendant’s
objection “accentuated the error.”
Id. at 241. This court
noted that, if the trial court had sustained the objection and
instructed the jury to disregard the argument, “a different question would be presented.”
Id. at 242. But, because
the trial court had not done so, reversal was required.
Id.
In Wederski, the prosecutor’s statements went further. In that case, the state contended that the defendant
584 State v. Banks
had signed stolen checks and, after defense counsel argued
that the state had failed to present any evidence that the
handwriting on the checks was the defendant’s, the prosecutor implied that he had a handwriting expert but that
the rules of evidence had limited his ability to present the
expert’s testimony:
“ ‘You know that there are certain rules of evidence and
certain requirements before we can use an expert witness.
Mr. Clair Alderson, if any of you are familiar, sat through
the entire trial and the right situation didn’t present itself
so that we could get his testimony on. You recall there was
no denial by [the defendant] that that was his handwriting
or perhaps we might have used our expert witness.’ ”
230 Or at 60. The defendant promptly moved for a mistrial, but the trial court denied the motion. The trial court
stated that it would cure the error in the jury instructions,
but it failed to do so. Among other things, it “failed to caution the jury that they could not consider the presence in
the courtroom of silent witnesses in aid of the state’s case.”
Id. at 60-61.
The defendant was convicted and appealed, and
this court held that the trial court had abused its discretion by denying the defendant’s motion for a mistrial. Id. at
60. This court observed that, had the trial court instructed
the jury to disregard the prosecutor’s improper argument,
“the denial of the motion for a mistrial might well have
been within the permissible limits of discretion,” but that,
because the trial court had failed to do so, “the case went to
the jury with the prejudicial statements approved, so far as
the jury knew, by the court’s silence.”
Id. at 60-61.
This court further held that the erroneous denial
of the defendant’s motion for a mistrial was not harmless,
noting that “[t]he state’s reference to evidence it might have
produced, but did not, was an open invitation for the jury to
speculate in a manner which has been denounced by this
court on several occasions.” Id. at 61-62 (citing Newburn,
178
Or 238, and State v. Pace,
187 Or 498, 510,
212 P2d 755
(1949)). In addition, this court noted that accepting the state’s
harmless error argument “would lead only to erosion of the
rights of defendants in other criminal trials.” Id. at 61. This
Cite as
367 Or 574 (2021) 585
court further noted that, even though the prosecutor’s comment did not involve “calculated misconduct … it is well to
remember that in the prosecution of a criminal action the
state must stay within the boundaries which experience has
proven are necessary to preserve a fair trial for the guilty
as well as for the innocent.” Id. at 62. Accordingly, this court
concluded that it was “necessary to order a new trial.” Id.
To summarize, a prosecutor may not make a statement to a jury that implies that additional evidence exists
but cannot be presented because of “our laws and rules of
the court,” Newburn, 178 Or at 241-42, or the “rules of evidence,” Wederski,
230 Or at 60-62. Such a statement injects
“extrinsic and prejudicial matter” into the trial, Newburn,
178 Or at 241-42, and constitutes an “open invitation for the
jury to speculate,” Wederski,
230 Or at 61. See also State v.
Pinnell,
311 Or 98, 108,
806 P2d 110 (1991) (“Asking a prospective juror a question containing inadmissible matter is
an improper use of voir dire.”).
If a defendant objects to such a statement and the
trial court overrules the objection, the trial court “accentuate[s] the error.” Newburn, 178 Or at 241. Although it may
be possible for a trial court to remedy the harm caused by
an improper statement by sustaining an objection to the
statement and instructing the jury to disregard the statement, when the trial court fails to take such actions, reversal is required.
Id. at 242. Similarly, if a defendant moves
for a mistrial based on such a statement and the trial court
denies the motion but fails to instruct the jury to disregard
the statement, reversal is required. Wederski,
230 Or at 62.
Those rules are consistent with OEC 103(3), which
provides:
“In jury cases, proceedings shall be conducted, to the
extent practicable, so as to prevent inadmissible evidence
from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the
hearing of the jury.”
(Emphasis added.) OEC 103(3) applies to statements by lawyers. Cler v. Providence Health System-Oregon, 349 Or 481,
490,
245 P3d 642 (2010) (holding that lawyer’s reference to
586 State v. Banks
information outside the evidentiary record was improper
under OEC 103(3) and required reversal).3
Applying the rules from Newburn and Wederski, we
conclude that the trial court in this case erred by failing
to sustain defendant’s objections to the prosecutor’s statements during voir dire. This case is very similar to Newburn,
in which the prosecutor told the jury that, under “our laws
and the rules of this court” the state can “only present such
evidence as is admissible.” 178 Or at 241. Here, the prosecutor told the prospective jurors to “keep in mind throughout
the trial” that “rules of evidence … give[ ] me parameters
of what I can present to you.” Over defendant’s objections,
the prosecutor continued, stating that “some things are not
going to be coming in,” that “some things are not going to
come into the trial today,” and that the jury was “not going
to have all the facts.” Thus, the prosecutor’s statements
indicated that she was aware of “things” and “facts” that,
because of the rules of evidence, would not be presented at
trial. Notably, the prosecutor’s statements were not general;
they were specific to the state’s case against defendant.
They concerned what the prosecutor herself could present to
the jurors in trial that day. As in Newburn, the prosecutor’s
statements were improper. They suggested that the state
3
The holdings of Newburn and Wederski are also consistent with ethical
rules and practice standards for lawyers. For example, Rule 3.4(e) of the Rules of
Professional Conduct provides that “a lawyer shall not … in trial, allude to any
matter that the lawyer does not reasonably believe is relevant or that will not
be supported by admissible evidence[.]” And Standard 3-6.3(d) of the American
Bar Association’s Criminal Justice Standards for the Prosecution Function (2017)
provides that a prosecutor “should not intentionally present arguments, facts or
evidence which the prosecutor reasonably should know will not be admissible at
trial.”
References to matters outside the evidentiary record may be particularly
harmful when made by a prosecutor. As the United States Supreme Court has
observed:
“It is as much [a prosecutor’s] duty to refrain from improper methods
calculated to produce a wrongful conviction as it is to use every legitimate
means to brings about a just one.
“It is fair to say that the average jury, in a greater or less degree, has
confidence that these obligations, which so plainly rest upon the prosecuting attorney, will be faithfully observed. Consequently, improper suggestions,
insinuations, and, especially, assertions of personal knowledge are apt to carry
much weight against the accused when they should properly carry none.”
Berger v. United States, 295 US 78, 88,
55 S Ct 629,
79 L Ed 1314 (1935) (emphasis
added).
Cite as
367 Or 574 (2021) 587
had more evidence against defendant than would be presented at trial, thereby encouraging speculation, and they
suggested that the reason the evidence would not be presented was because it had been excluded under the rules of
evidence, thereby providing a potential excuse for any shortcomings in the state’s evidence.
The state argues that the prosecutor’s statements
were not improper and contends that this case is distinguishable from Newburn and Wederski for three reasons.
First, the state argues that, because the prosecutor’s statements were made during voir dire, they differ from those
in Newburn and Wederski, which, according to the state,
were “made during closing arguments that were expressly
directed at the evidence presented at trial.” Second, the state
argues that the statements did not suggest that “the state
possessed incriminating evidence,” just “inadmissible evidence.” (Emphasis in original.) And, third, the state argues
that the statements were not improper because the prosecutor also told the jury that it was “not allowed to speculate.”
The state’s arguments are unavailing. As discussed
above, the prosecutor’s statements in this case are very similar to those in Newburn. They do not differ in any meaningful way. And, although the statements in this case may not
have been as blatant as those in Wederski—where the prosecutor pointed to a person in the courtroom and indicated
that the person was a handwriting expert whom the state
could have called as a witness if the defendant had denied
that the handwriting on the stolen checks was his—they
were still improper. The basic rule from both Newburn and
Wederski is that the state may not suggest that the rules of
evidence prevent it from presenting all its evidence to the
jury, and, here, the prosecutor’s statements violated that
basic rule.
The state’s arguments about the differences between
this case and Newburn and Wederski do not lead to a different conclusion. Contrary to the state’s first argument, it does
not matter that the prosecutor made the statements during
voir dire. Such statements are improper at any point in a
trial. Pinnell, 311 Or at 108 (holding that prosecutor’s reference to defendant’s criminal history during voir dire was
588 State v. Banks
error). And, as this case illustrates, when such statements
are made during voir dire, they can prejudice a defendant by
preemptively providing an explanation for the state’s later
failure to produce evidence that the jury might expect it to
produce. As described above, defendant argued that the state
had failed to carry its burden of proving the alleged harassment because it had failed to gather and present video that
would have shown whether the alleged harassment actually
had occurred. The prosecutor’s statements during voir dire
provided the jury with an alternative (but inaccurate) explanation for the state’s failure to present video of the alleged
harassment.
And, contrary to the state’s second argument,
because the state is the plaintiff in a criminal case, a prosecutor’s suggestion that the state has more evidence than it
can present will likely be understood as a suggestion that
the state has more incriminating evidence than it can present. Indeed, in Newburn, this court held that the prosecutor’s statement that “ ‘out of all of the facts in the District
Attorney’s office that we may have, we can only present such
evidence as is admissible,’ ” injected “extrinsic and prejudicial matter” into the trial, even though the statement did
not identify particular facts that the prosecutor could not
present.4
Finally, contrary to the state’s third argument, it
is improper for a prosecutor to suggest that the state has
more evidence than it can present even if the prosecutor also
tells the jury that it is “not allowed to speculate.” A suggestion that the state has more evidence than it can present
is an “open invitation for the jury to speculate,” Wederski,
230 Or at 61, and making such a suggestion and then telling the jury not to speculate is, at best, inconsistent. It is
akin to telling jurors “not to think of a white bear.” Lakeside
v. Oregon,
435 US 333, 345,
98 S Ct 1091,
55 L Ed 2d 319
4
Other jurisdictions also have held that general references to information
outside the evidentiary record are improper. See, e.g., Commonwealth v. Bolden,
227 Pa Super 458, 323 A2d 797 (1974) (prosecutor’s argument that there were
“certain things” about the case that the prosecutor could not tell the jury was
improper, even though the comment “did not refer to any particular factual matter,” because the “implication is clear that there existed other incriminating or
sinister facts which either were not admissible or could not be produced”).
Cite as
367 Or 574 (2021) 589
(1978) (Stevens, J., dissenting) (using the example to illustrate the harm of referring to inadmissible evidence, even
when telling jurors not to think about it).
Moreover, in connection with telling the jurors that
they would not have all the facts, the prosecutor told the
jurors that the “only” facts that they were to “think about
in trial” were the “facts that are presented.” That statement
could have caused jurors to believe that they were not to
think about the missing video at all, but that belief would
have been incorrect because jurors can draw reasonable
inferences from a party’s failure to present evidence “[w]hen
it would be natural under the circumstances” for the party
to present that evidence. Cler, 349 Or at 489 (internal quotation marks omitted); see also State v. Mims,
36 Or 315, 323,
61 P 888 (1900) (holding that prosecutor could comment on
defendant’s failure to call witnesses who would have been
in a position to observe an injury defendant claimed to have
suffered); State v. Lincoln,
250 Or 426, 427,
443 P2d 178
(1968) (holding that prosecutor could comment on defendant’s failure to call available witnesses).
Thus, we conclude that, contrary to the state’s arguments, the prosecutor’s statements in voir dire were improper
and the trial court erred in overruling defense counsel’s
objections to them. Accordingly, we turn to the state’s alternative argument: that the error was harmless.
When determining whether an error was harmless,
the dispositive question is whether there is “little likelihood
that the error affected the jury’s verdict.” State v. Davis, 336
Or 19, 32,
77 P3d 1111 (2003) (construing Or Const, Art VII
(Amended), § 3, which requires this court to affirm trial
court judgments, notwithstanding an error in the trial, if
this court is of the opinion “that the judgment of the [trial
court] was such as should have been rendered”).
In this case, we cannot conclude that the trial
court’s error was harmless. The prosecutor’s statements
during voir dire suggested that the state had additional evidence against defendant that had been excluded under the
rules of evidence. The prosecutor introduced the statements
by telling the prospective jurors that there was something
she wanted them to “keep in mind throughout the trial.”
590 State v. Banks
She then told them—three times—that there were “things”
and “facts” that would not be presented at trial. And, when
defense counsel objected to the statements, the trial court
overruled his objections. In doing so, the trial court “accentuated the error.” Newburn, 178 Or at 241. From the jury’s
perspective, the prosecutor’s statements “appear[ed] to have
received the trial court’s imprimatur.” Cler,
349 Or at 491.
In addition, the trial court refused defense counsel’s request
for a curative instruction. Like the trial courts in Newburn
and Wederski, it failed to tell the jury to disregard the prosecutor’s statements. Consequently, the statements were
“approved, so far as the jury knew, by the court’s silence.”
Wederski,
230 Or at 61.
As mentioned, the prosecutor’s statements were
prejudicial in two ways. First, because they suggested that
there was evidence beyond that which would be presented
at trial, they encouraged speculation. Second, because they
suggested that the reason the evidence would not be presented was because it had been excluded under the rules
of evidence, they provided a preemptive explanation for the
state’s failure to present evidence that the jury might expect
it to present. The prejudice was significant because it related
to a central issue in the case: the absence of video of the
alleged harassment. The prosecutor’s statements created a
risk that jurors would infer that the state had video of the
alleged harassment but could not present it because of the
rules of evidence. The statements also created a risk that
jurors would believe that they could not take the state’s failure to present the video into account, which would undercut
part of defendant’s defense.
Moreover, the jury’s questions show that the jury
was concerned about the missing video. The jury asked if the
prosecutor knew whether video of the alleged harassment
existed and, if so, whether the prosecutor was required to
show it at trial. The prosecutor’s statements during voir dire
created a risk that the jury would resolve those questions
in the state’s favor based on a belief that the prosecutor had
the video, but it was not admissible under the rules of evidence. And, the court’s answer to the jury’s questions—“you
have been provided the admitted evidence in this case”—
may have increased that risk.
Cite as 367 Or 574 (2021) 591
Nevertheless, the state argues that the prosecutor’s statements were harmless for three reasons, which we
address in turn. First, the state argues that the prosecutor’s statements were harmless because they were “brief”
and “occurred before the evidentiary phase of the trial had
begun.” To the extent the state is arguing that the statements would not have drawn much attention, that suggestion is contradicted by the record, which, as just described,
shows that the prosecutor repeated the statements several
times over defense counsel’s objections and with the trial
court’s apparent approval. And the fact that the statements
were made during voir dire did not render them harmless;
to the contrary, the timing of the statements enabled them
to serve as preemptive explanation for any evidentiary gaps
in the state’s case, including the missing video, which—as
the jury’s questions show—was a concern during the jury’s
deliberations.5
Second, the state argues that the prosecutor’s statements were harmless because the prosecutor “did not capitalize” on them because she “did not discuss” the video. That
argument is inapposite. It is not surprising that the prosecutor chose not to discuss the video at trial because the
video did not aid the state’s case; instead, the video highlighted a gap in the state’s evidence because it did not show
the alleged harassment.
Third, the state argues that the prosecutor’s statements were harmless because the trial court gave the jury
standard instructions, including instructions regarding
how the jury was to make its factual findings. As described
above, the court told the jury, “As [the] judge, I’m [the] gatekeeper regarding evidence. I determine what the law allows
to be evidence. In effect, the law considers anything that is
not in evidence to be unreliable. That is why we do not consider non-evidence in deciding the facts.” The court also told
5
In arguing that the prosecutor’s statements were harmless because they
were made during voir dire, the state relies on State v. Evans, 344 Or 358,
182
P3d 175 (2008). But Evans involved a statement by a prospective juror about an
unrelated matter, whereas this case involves a statement by the prosecutor about
the evidence that was going to be presented at trial. And, the issue in Evans was
whether the trial court erred by denying a mistrial motion, which is reviewed for
an abuse of discretion and involves a different standard than the harmless error
inquiry.
592 State v. Banks
the jury, “You may draw reasonable inferences from the evidence but you’re not to guess or speculate.” The state argues
that the instructions cured any prejudice caused by the
prosecutor’s statements. We disagree. The instructions did
not tell the jury to disregard the prosecutor’s statements.
They did not counter the prosecutor’s suggestion that the
state had evidence that had been excluded because of the
rules of evidence, a suggestion that undercut part of defendant’s defense. And they stated that anything that was not
in evidence, which would include any video of the alleged
harassment, was unreliable.6
Moreover, this court rejected a similar argument
in Cler. In that case, the defendant told the jury, over the
plaintiff’s objections, that it had an expert witness that it
could have called, but for a scheduling problem. 349 Or at
486. The trial court gave the jury “the standard instructions that it must decide the case based on the evidence
(testimony and exhibits) presented at trial and that counsel’s opening statements and closing arguments are not
evidence.”
Id. On review, the plaintiff argued that the trial
court had erred in overruling its objections, and the defendant responded, in part, that even if the trial court had
erred, the error was harmless because of the trial court’s
instructions. This court rejected that argument, noting that
OEC 103(3) “deters the suggestion of inadmissible evidence
to the jury by any means, including through counsel’s statements,” and does not “somehow authorize that sort of conduct” if the trial court gives the jury standard instructions.
Id. at 493.
Thus, we conclude that the prosecutor’s improper
statements during voir dire were not harmless. Because they
suggested that the state had additional evidence against
defendant that it could not present, they were prejudicial. In
addition, they were prominent, related to a central issue in
the case on which the jury was focused, and undercut a part
of defendant’s defense.
6
As mentioned, the trial court’s instructions were based on UCrJI 1004,
which states, “In effect, the law considers anything that is not evidence to be
unreliable; that is why you many not consider nonevidence in deciding the facts.”
We note, however, that evidence may be excluded for reasons other than whether
it is reliable.
Cite as 367 Or 574 (2021) 593
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.
