Justice Bushong Highlights A Few Improper Closing Arguments

by: Ryan Scott • May 5, 2025 • no comments

In State v. Mendez Perez, 373 Or 591 (2025), the Oregon Supreme Court looked at whether a handful of arguments made by the prosecutor in closing/rebuttal merited reversal, when the defendant did not object to those arguments. The court concluded the various statements did not merit reversal.

In his dissent, Justice Bushong, joined by Justice James, suggested that the court's blanket approach to "plain error" may not be appropriate in every situation where an error is unpreserved. That discussion, which is highly valuable, is something for appellate attorneys to consider, and I don't plan to get into it here.

Justice Bushong goes on and highlights some -- but not all -- of arguments that are inappropriate and objectionable when made by the prosecutor. His list starts on page 617 of the opinion. It is a good list, and I highly recommend reviewing it before your next trial. Note also that Justice Bushong recommends a law review article -- Michael D. Cicchini, Combating Prosecutorial Misconduct in Closing Arguments, 70 Okla L Rev 887 (2018) -- for additional examples of inappropriate argument.