The rules of evidence prevent parties from presenting a variety of different types of evidence, such as hearsay, character evidence, and evidence of the victim’s sexual history. But can a prosecutor tell jurors that he’s bound by those rules, implying that he has other evidence of the defendant’s guilt? That was the question addressed by the Supreme Court of Oregon in its recent opinion in State v. Banks, 2021 WL 733206 (Oregon 2021).
In Banks, Daezhar Omani Banks was charged with harassment. Thereafter,
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, 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—
“[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.”
Defense counsel then moved for a curative instruction, but the judge responded that he would “not give a curative instruction before we pick our jury.”
After he was convicted, Banks appealed, claiming that the prosecutor’s comments violated his right to an impartial jury. The Supreme Court of Oregon agreed, concluding that
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.”…Such a statement injects “extrinsic and prejudicial matter” into the trial…and constitutes an “open invitation for the jury to speculate.”…
If a defendant objects to such a statement and the trial court overrules the objection, the trial court “accentuate[s] the error.”
Building off this last sentence, the court found that the prosecutor’s comments were sufficiently prejudicial to require a new trial,
conclud[ing] 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.
-CM
