less-satisfactory-evidence instruction in Oregon

2026First, he argues that the rule applied by the trial court— that the less-satisfactory-evidence instruction is proper only when it appears that a party is trying to hide something— derives from a line of Court of Appeals cases beginning with State v. McNassar, 77 Or App 215 , 712 P2d 170 , rev den, 300 Or 704 (1986), that are plainly wrong and should be overruled.

2026First, he argues that the rule applied by the trial court— that the less-satisfactory-evidence instruction is proper only when it appears that a party is trying to hide something— derives from a line of Court of Appeals cases beginning with State v. McNassar, 77 Or App 215 , 712 P2d 170 , rev den, 300 Or 704 (1986), that are plainly wrong and should be overruled.

2025In criminal cases, the instruction “should rarely be given,” but it may be appropriate where the state’s failure to produce the evidence gives rise to an infer- ence that the state may be attempting to hide something, or when the record indicates that the state possessed but failed Nonprecedential Memo Op: 339 Or App 511 (2025) 513 to produce the stronger evidence.

2025See also State v. Palacios-Romero, 320 Or App 563, 567-68 , 514 P3d 147 , rev den, 370 Or 472 (2022) (following McNassar); State v. Brock, 53 Or App 785, 791 , 633 P2d 805 (1981), aff’d on other grounds, 294 Or 15 , 653 P2d 543 (1982) (holding that a less-satisfactory-evidence instruction was not required when the state reasonably declined to pursue further investigative measures that could have gathered arguably stronger corroborating evidence).

2025See also State v. Palacios-Romero, 320 Or App 563, 567-68 , 514 P3d 147 , rev den, 370 Or 472 (2022) (following McNassar); State v. Brock, 53 Or App 785, 791 , 633 P2d 805 (1981), aff’d on other grounds, 294 Or 15 , 653 P2d 543 (1982) (holding that a less-satisfactory-evidence instruction was not required when the state reasonably declined to pursue further investigative measures that could have gathered arguably stronger corroborating evidence).

2025See also State v. Palacios-Romero, 320 Or App 563, 567-68 , 514 P3d 147 , rev den, 370 Or 472 (2022) (following McNassar); State v. Brock, 53 Or App 785, 791 , 633 P2d 805 (1981), aff’d on other grounds, 294 Or 15 , 653 P2d 543 (1982) (holding that a less-satisfactory-evidence instruction was not required when the state reasonably declined to pursue further investigative measures that could have gathered arguably stronger corroborating evidence).

2025See also State v. Palacios-Romero, 320 Or App 563, 567-68 , 514 P3d 147 , rev den, 370 Or 472 (2022) (following McNassar); State v. Brock, 53 Or App 785, 791 , 633 P2d 805 (1981), aff’d on other grounds, 294 Or 15 , 653 P2d 543 (1982) (holding that a less-satisfactory-evidence instruction was not required when the state reasonably declined to pursue further investigative measures that could have gathered arguably stronger corroborating evidence).

2025Franzen, 336 Or App at 103 .

2025Co., 167 Or 439, 445 , 117 P2d 825 (1941) (agreeing that a less-satisfactory-evidence instruction was not warranted because either party could have called an absent witness and the documentary evidence pre- sented was equivalent to, if not better than, the witness’s testimony); Mooney v. Holcomb, 15 Or 639 , 16 P 716 (1888) (declining on de novo review to apply the presumption now codified in ORS 10.095(8) because the circumstantial evidence was equally, if not more, persuasive than direct testimony); West, 289 Or App at 419-20 (concluding that, on the facts in that case, documentary evidence

2025Co., 167 Or 439, 445 , 117 P2d 825 (1941) (agreeing that a less-satisfactory-evidence instruction was not warranted because either party could have called an absent witness and the documentary evidence pre- sented was equivalent to, if not better than, the witness’s testimony); Mooney v. Holcomb, 15 Or 639 , 16 P 716 (1888) (declining on de novo review to apply the presumption now codified in ORS 10.095(8) because the circumstantial evidence was equally, if not more, persuasive than direct testimony); West, 289 Or App at 419-20 (concluding that, on the facts in that case, documentary evidence

2025Co., 167 Or 439, 445 , 117 P2d 825 (1941) (agreeing that a less-satisfactory-evidence instruction was not warranted because either party could have called an absent witness and the documentary evidence pre- sented was equivalent to, if not better than, the witness’s testimony); Mooney v. Holcomb, 15 Or 639 , 16 P 716 (1888) (declining on de novo review to apply the presumption now codified in ORS 10.095(8) because the circumstantial evidence was equally, if not more, persuasive than direct testimony); West, 289 Or App at 419-20 (concluding that, on the facts in that case, documentary evidence

2025Co., 167 Or 439, 445 , 117 P2d 825 (1941) (agreeing that a less-satisfactory-evidence instruction was not warranted because either party could have called an absent witness and the documentary evidence pre- sented was equivalent to, if not better than, the witness’s testimony); Mooney v. Holcomb, 15 Or 639 , 16 P 716 (1888) (declining on de novo review to apply the presumption now codified in ORS 10.095(8) because the circumstantial evidence was equally, if not more, persuasive than direct testimony); West, 289 Or App at 419-20 (concluding that, on the facts in that case, documentary evidence

2023State v. Hendershott, 131 Or App 531, 535-36 , 887 P2d 351 (1994), rev den, 320 Or 587 (1995).

2023Even assuming that a less-satisfactory evidence instruction can be given in instance of negligent spoliation, in the context of this case we cannot conclude that defen- dant has established that “the evidence was stronger than other evidence offered by the state.” Hendershott, 131 Or App at 535-36 .

2023Id.

2022We have explained that “the instruction ‘does not penalize a party for failing to pro- duce all available evidence,’ but rather, as relevant here, ‘draws the jury’s attention to a party’s failure to produce evidence when that failure could give rise to an inference that the evidence would be adverse to the party—that is, when it appears that the party may be trying to hide something.’ ” 1 Under ORS 10.095, the trial court is to instruct the jury “on all proper occa- sions” that “(7) The evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which

2022We have explained that “the instruction ‘does not penalize a party for failing to pro- duce all available evidence,’ but rather, as relevant here, ‘draws the jury’s attention to a party’s failure to produce evidence when that failure could give rise to an inference that the evidence would be adverse to the party—that is, when it appears that the party may be trying to hide something.’ ” 1 Under ORS 10.095, the trial court is to instruct the jury “on all proper occa- sions” that “(7) The evidence is to be estimated, not only by its own intrinsic weight, but also according to the evidence which

2021The state concedes that defendant’s convictions based on nonunanimous ver- dicts must be reversed in light of Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020).

2021The state concedes that defendant’s convictions based on nonunanimous ver- dicts must be reversed in light of Ramos v. Louisiana, 590 US ___ , 140 S Ct 1390 , 206 L Ed 2d 583 (2020).