Prosecutor PowerPoint: “Silence = Guilt” Vacates Oregon Murder Conviction

On October 15, 2014, the Oregon Court of Appeals vacated a murder conviction, holding that a prosecutor’s PowerPoint presentation impermissibly commented on a Defendant’s invocation of his right to remain silent.

Michael Reineke called 911, requesting police and a coroner. When police arrived, they found Reineke’s mother, “lying in her kitchen with a pool of blood around her head and a phone cord around her neck.”

Reineke declined to talk and invoked his right to counsel. He was charged with murder and a jury trial was held.

During closing arguments, the prosecutor used a PowerPoint presentation that included three slides of Reineke’s photograph with the word “GUILTY” in large red capital letters underneath it. One of the slides listed four reasons the jury should find him guilty, including “His refusal to speak at the police station,” positioned directly beneath the word “GUILTY.”

An “arrow pointed from the phrase to defendant’s picture. However, the positioning of the phrase,... was such that the arrow not only pointed to defendant’s picture, but also pointed directly to the word ‘GUILTY’ that was located under the picture.”

When the prosecutor orally commented on Reineke’s refusal to speak to police, defense counsel objected but the trial court overruled the objection.

The prosecutor discussed each of her four reasons Reineke was guilty, repeatedly commenting on his refusal to speak to police. The court again overruled defense counsel’s objections to the comments and PowerPoint presentation.

“All told, in three separate frames of the PowerPoint presentation, the jury saw ‘His refusal to speak at the police station’ with an arrow pointing to ‘GUILTY.’”

After the jury retired to deliberate, defense counsel moved for a mistrial, arguing that the “PowerPoint presentation and repetitive arguments about his refusal to speak to the detectives amounted to unconstitutional comment on his invocation of the right to remain silent.” The trial court denied the motion, finding that the prosecutor was not arguing that Reineke’s silence indicated his guilt. The jury found Reineke guilty of murder.

The Oregon Court of Appeals agreed with the State’s concession “that ‘components of the PowerPoint presentation placed unnecessary emphasis on defendant’s invocation.’”

“The prosecutor could not argue that defendant’s refusal to speak to the police was evidence of his guilt - which is exactly what she did in her PowerPoint presentation,” the Court found. “The prosecutor’s PowerPoint presentation expressly urged the jury to decide that defendant’s refusal to speak to the police was one of the four reasons that he was guilty of murdering the victim.” Thus, the Court had “no trouble concluding” that “it is highly likely that the jury drew an adverse inference that defendant’s refusal to speak to the detectives was evidence of his guilt.” Therefore, “the trial court erred when it failed to sustain defendant’s objection to the PowerPoint presentation.” See: State v. Reineke, 266 Or. App. 299, 337 P.3d 941 (2014).

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