20 Oregon opinions name it 1 courts 2019–2025 18 in the last five years
The cases below were cited by Oregon courts in a sentence that names this issue. Sides come from how each citing opinion treated the case (Syfertize flag on that citation), so a case can appear on both: that is where the law is contested. A red or yellow chip is the case's own overall treatment.
| Case | Followed | Cited |
|---|---|---|
State v. Totlandgreen2 sentences2025Such an instruction, immediately following the improper state- ment, would have been sufficient to minimize the “realis- tic 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) (internal quotation marks omitted). 2025Such an instruction, immediately following the improper state- ment, would have been sufficient to minimize the “realis- tic 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) (internal quotation marks omitted). | 4 | 12 |
State v. Perezgreen2 sentences2025However, a prosecutor may not “inappropriately characterize the jury’s fact-finding func- tion in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard of proof.” Id. at 621 ; see State v. Perez, 373 Or 591 , 619, 568 P3d 949 (2025) (Bushong, J., concurring) (observing that “a prosecu- tor should never argue or suggest to the jury that the defen- dant has the burden of proving anything, except when the law places the burden of proving an affirmative defense on the defendant”). 2025However, a prosecutor may not “inappropriately characterize the jury’s fact-finding func- tion in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard of proof.” Id. at 621 ; see State v. Perez, 373 Or 591, 619 , 568 P3d 949 (2025) (Bushong, J., concurring) (observing that “a prosecu- tor should never argue or suggest to the jury that the defen- dant has the burden of proving anything, except when the law places the burden of proving an affirmative defense on the defendant”). | 2 | 2 |
State v. Purriergreen2 sentences2025However, a prosecutor may not “inappropriately characterize the jury’s fact-finding func- tion in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard of proof.” Id. at 621 ; see State v. Perez, 373 Or 591 , 619, 568 P3d 949 (2025) (Bushong, J., concurring) (observing that “a prosecu- tor should never argue or suggest to the jury that the defen- dant has the burden of proving anything, except when the law places the burden of proving an affirmative defense on the defendant”). 2025However, a prosecutor may not “inappropriately characterize the jury’s fact-finding func- tion in a manner that raises some realistic possibility of confusing the jurors about the ultimate standard of proof.” Id. at 621 ; see State v. Perez, 373 Or 591, 619 , 568 P3d 949 (2025) (Bushong, J., concurring) (observing that “a prosecu- tor should never argue or suggest to the jury that the defen- dant has the burden of proving anything, except when the law places the burden of proving an affirmative defense on the defendant”). | 1 | 9 |
| Case | Negative | Cited |
|---|---|---|
| No negative-treatment citations attached to this issue in Oregon. Read the followed side critically anyway. | ||
| Case | Cited | Years |
|---|---|---|
State v. Mayo
green
2 sentences2024For that reason, in State v. Mayo, 303 Or App 525, 537 , 465 P3d 267 (2020), we explained that the “state cannot comment on a defendant’s failure to adduce evidence to prove that the defendant did not have the requisite mental state neces- sary to establish criminal liability, because doing so could erroneously lead the jury to believe that the defendant car- ried the burden of introducing evidence to prove his or her innocence.” Here, the trial court instructed the jury that to establish unauthorized use of a vehicle, the state had the burden to prove beyond a reasonable doubt that defendant 2024And I submit to you that when there’s no one else, when there’s no evidence of any of these alternative explanations, and the only evi- dence that does exist points to the existence of the fact that the defendant was driving the car, that that is proof beyond a reasonable doubt.” (Emphases added.) 42 State v. Brannan On appeal, defendant argues that those comments “improperly implied that defendant had a burden to pro- duce evidence by drawing attention to defendant’s failure to present additional witnesses or physical evidence to support his defense theory.” A prosecutor’s comments are improp | 5 | 2023–2024 |
State v. Skotland
green
2 sentences2023On appeal, we held that the trial court erred in overruling the defendant’s objection, because the prosecu- tor’s comments raised a “realistic possibility of confusing the jurors about the ultimate standard or burden of proof.” Id. at 526 (quoting Totland, 296 Or App at 531 ). 2023On appeal, we held that the trial court erred in overruling the defendant’s objection, because the prosecu- tor’s comments raised a “realistic possibility of confusing the jurors about the ultimate standard or burden of proof.” Id. at 526 (quoting Totland, 296 Or App at 531 ). | 2 | 2023–2023 |
State v. Spieler
green
2 sentences2020In State v. Spieler, 269 Or App 623, 641-42 , 346 P3d 549 (2015), we explained that “certain comments about a defendant’s failure to present evidence may reasonably cause the factfinder to misapprehend and misallocate the burden of proof,” but “a wholesale prohibition on all such comments would unfairly impair prosecutors’ ability to counter certain matters raised or implicated by the defense.” Accordingly, we recognized two limited circumstances in which a prose- cutor is permitted to “comment on [a] defendant’s failure to present or contradict evidence.” Id. at 641 . 3 Although defendant’s a 2020In State v. Spieler, 269 Or App 623, 641-42 , 346 P3d 549 (2015), we explained that “certain comments about a defendant’s failure to present evidence may reasonably cause the factfinder to misapprehend and misallocate the burden of proof,” but “a wholesale prohibition on all such comments would unfairly impair prosecutors’ ability to counter certain matters raised or implicated by the defense.” Accordingly, we recognized two limited circumstances in which a prose- cutor is permitted to “comment on [a] defendant’s failure to present or contradict evidence.” Id. at 641 . 3 Although defendant’s a | 2 | 2019–2020 |
State v. Dumdei
green
1 sentence2025Indeed, we understand the “cura- tive instructions” contemplated in the current plain error Cite as 337 Or App 246 (2025) 255 analysis to refer to instructions given immediately following the prosecutor’s improper statements which directly address the misconduct. | 1 | 2025–2025 |
State v. McCoy
green
2 sentences2020As we observed in State v. McCoy, 17 Or App 155, 162 , 521 P2d 1074 , aff’d on other grounds, 270 Or 340 , 27 P2d 725 (1974), under ORS 161.055, “[t]o establish a ‘defense,’ the burden of producing evidence rests on the defendant” and, “[i]f he fails to meet this burden, he suffers the rough 4 ORS 161.055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is raised at trial, the de 2020As we observed in State v. McCoy, 17 Or App 155, 162 , 521 P2d 1074 , aff’d on other grounds, 270 Or 340 , 27 P2d 725 (1974), under ORS 161.055, “[t]o establish a ‘defense,’ the burden of producing evidence rests on the defendant” and, “[i]f he fails to meet this burden, he suffers the rough 4 ORS 161.055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is raised at trial, the de | 1 | 2020–2020 |
State v. McCoy
green
1 sentence2020As we observed in State v. McCoy, 17 Or App 155, 162 , 521 P2d 1074 , aff’d on other grounds, 270 Or 340 , 27 P2d 725 (1974), under ORS 161.055, “[t]o establish a ‘defense,’ the burden of producing evidence rests on the defendant” and, “[i]f he fails to meet this burden, he suffers the rough 4 ORS 161.055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is raised at trial, the de | 1 | 2020–2020 |
De Haven v. Evans
neutral
1 sentence2020As we observed in State v. McCoy, 17 Or App 155, 162 , 521 P2d 1074 , aff’d on other grounds, 270 Or 340 , 27 P2d 725 (1974), under ORS 161.055, “[t]o establish a ‘defense,’ the burden of producing evidence rests on the defendant” and, “[i]f he fails to meet this burden, he suffers the rough 4 ORS 161.055 provides: “(1) When a ‘defense,’ other than an ‘affirmative defense,’ * * * is raised at trial, the state has the burden of disproving the defense beyond a reasonable doubt. “(2) When a defense, declared to be an affirmative defense by chapter 743, Oregon Laws 1971, is raised at trial, the de | 1 | 2020–2020 |
State v. MacHuca
green
2 sentences2020In State v. Spieler, 269 Or App 623, 641-42 , 346 P3d 549 (2015), we explained that “certain comments about a defendant’s failure to present evidence may reasonably cause the factfinder to misapprehend and misallocate the burden of proof,” but “a wholesale prohibition on all such comments would unfairly impair prosecutors’ ability to counter certain matters raised or implicated by the defense.” Accordingly, we recognized two limited circumstances in which a prose- cutor is permitted to “comment on [a] defendant’s failure to present or contradict evidence.” Id. at 641 . 3 Although defendant’s a 2020In State v. Spieler, 269 Or App 623, 641-42 , 346 P3d 549 (2015), we explained that “certain comments about a defendant’s failure to present evidence may reasonably cause the factfinder to misapprehend and misallocate the burden of proof,” but “a wholesale prohibition on all such comments would unfairly impair prosecutors’ ability to counter certain matters raised or implicated by the defense.” Accordingly, we recognized two limited circumstances in which a prose- cutor is permitted to “comment on [a] defendant’s failure to present or contradict evidence.” Id. at 641 . 3 Although defendant’s a | 1 | 2020–2020 |
State v. Moylett
green
2 sentences2020In State v. Spieler, 269 Or App 623, 641-42 , 346 P3d 549 (2015), we explained that “certain comments about a defendant’s failure to present evidence may reasonably cause the factfinder to misapprehend and misallocate the burden of proof,” but “a wholesale prohibition on all such comments would unfairly impair prosecutors’ ability to counter certain matters raised or implicated by the defense.” Accordingly, we recognized two limited circumstances in which a prose- cutor is permitted to “comment on [a] defendant’s failure to present or contradict evidence.” Id. at 641 . 3 Although defendant’s a 2020In State v. Spieler, 269 Or App 623, 641-42 , 346 P3d 549 (2015), we explained that “certain comments about a defendant’s failure to present evidence may reasonably cause the factfinder to misapprehend and misallocate the burden of proof,” but “a wholesale prohibition on all such comments would unfairly impair prosecutors’ ability to counter certain matters raised or implicated by the defense.” Accordingly, we recognized two limited circumstances in which a prose- cutor is permitted to “comment on [a] defendant’s failure to present or contradict evidence.” Id. at 641 . 3 Although defendant’s a | 1 | 2020–2020 |
Counted by distinct opinions that both name this issue and are annotated to the section; sections every opinion cites regardless of issue are not filtered here, so read the counts against the total above.