Oregon Appellate Court, October 6, 2021

by: Rankin Johnson • October 11, 2021 • no comments

Summarized by Rankin Johnson, OCDLA

EVIDENCE - Facts outside the record
Importance: 4/5

Prosecutor's argument that stains on defendant's gloves looked like blood, but confirmatory DNA testing would take too long to produce evidence for trial, was improper reference to facts outside the record. Reversed.

On remand from the Supreme Court, the Court of Appeals reconsidered its earlier decision that the error was harmless. In concluding that the evidence was harmful, the Court of Appeals explained that the prosecutor's excuse for not obtaining DNA evidence undercut the defendant's permissible argument that the failure to obtain evidence could be held against the state. The instruction not to consider evidence outside the record exacerbated the harm by further weakening the defense argument.

The court declined to reconsider its ruling on the witness-false-in-part instruction, because it might not arise on remand.

State v. Camirand 314 Or App 791 (September 29, 2021) (Lagesen) (Lincoln County, Branford)