Background
Zachary Charles Smith was convicted of driving under the influence of intoxicants (DUII), reckless driving, failure to perform duties of driver-property damage, and two counts of criminal driving while suspended or revoked. The defendant was apprehended in the basement of a house following a police investigation that included questioning of other occupants.
On appeal, Smith raised a single unpreserved assignment of error. During the prosecutor’s rebuttal closing argument, the prosecutor referenced police bodycam footage and statements made by other individuals at the house—evidence that was not admitted at trial. The prosecutor explained that this evidence could not be presented because of “the rules,” referring to evidentiary limitations such as the hearsay rule.
Smith argued that this reference to excluded evidence violated his right to a fair trial by encouraging the jury to speculate about evidence not before it.
The Court’s Holding
The Oregon Court of Appeals affirmed Smith’s conviction. Applying plain-error analysis (because Smith did not object at trial), the court held that even if the prosecutor’s statements were improper, they would have been sufficiently cured by a jury instruction to disregard the statements.
The court emphasized that it must assume a jury could follow a curative instruction unless there is an “overwhelming probability” it could not. The court noted that the jury had already been instructed on the hearsay rule and told that “lawyers’ statements and arguments are not evidence.” These prior instructions “countered” any impropriety in the prosecutor’s remarks. The court concluded that an instruction to disregard the prosecutor’s statements would have been sufficient to assure a fair trial under all circumstances.
Key Takeaways
- Prosecutors may not present evidence excluded by the rules of evidence, but references to such exclusions during closing argument do not automatically constitute plain error warranting reversal when the trial court has given adequate jury instructions.
- Under Oregon’s plain-error standard, a defendant who fails to preserve an error must meet an exceptionally high bar—demonstrating he or she was denied a fair trial.
- Prior jury instructions regarding hearsay and the non-evidentiary nature of attorneys’ statements can be sufficiently curative of prosecutorial reference to excluded evidence.
Why It Matters
This decision clarifies the limits of prosecutorial conduct during closing argument. While prosecutors must adhere to evidentiary rules and cannot present excluded evidence, a mere reference to excluded evidence during argument—without objection—will not reverse a conviction if standard jury instructions would adequately remedy any prejudice.
The decision reinforces the high bar for plain-error review in criminal cases and the weight given to jury instructions as a remedial measure. Defense counsel must be vigilant in objecting to prosecutorial statements at trial; failure to do so leaves the appellate standard substantially more favorable to the state.