Calling defendant "predator," denigrating defense counsel results in reversal

In its slate of opinions published June 4, 2025, the Oregon Court of Appeals issued a precedential opinion in State of Oregon v. John Patrick Clark, reversing the case originally out of Deschutes County on grounds of prosecutorial misconduct during a rebuttal closing argument.

During the State's rebuttal close, the prosecutor repeatedly called the defendant a "predator" and suggested that he was now preying on jurors by asking them to acquit him. The State went on to blame defense counsel, or defense attorneys generally as the reason the forensic child interview in the case was not as helpful to the State as it could have been, since forensic interview questions generally are required to be non-suggestive and open-ended. Finally, the State attacked defense counsel directly, implying that counsel was insensitive to the experience of a sexual assault victim by improperly personalizing her remarks about defendant's attorney.

Defendant moved for a new trial, which the trial court denied, finding the statements were not "problematic on their face."

The Court of Appeals reversed, finding the statements were plainly improper and so prejudicial that no curative instruction would remediate the prejudice and assure the defendant a fair trial.

The Court found the prosecutor's use of "predator" language invited the jury to decide the case on an improper emotional basis, and her criticism of child interviewing techniques as somehow a creation of the defense bar only compounded the issue. The Court also found it relevant that factually, it was a close case and was in fact a credibility contest where the jury was required to weigh the alleged victim's statements (some of which were inconsistent) against defendant's own credibility.