Plain-Error Review of Prosecutorial Jury Argument: Clarifying the Chitwood Framework in State v. Perez

Introduction

State v. Perez, 373 Or 591 (2025), is the Oregon Supreme Court’s latest guidance on when a prosecutor’s remarks in rebuttal closing argument can give rise to reversal on plain‐error review. The defendant, Ivan Rosalio Mendez Perez, stood convicted after a jury trial on multiple misdemeanors arising from a confrontation in a Fred Meyer parking lot. On appeal the Court of Appeals reversed—concluding that three of the prosecutor’s remarks were “obviously improper,” infringed defendant’s right to trial and the presumption of innocence, and were so prejudicial that no curative instruction could have assured a fair trial. The Supreme Court granted review to determine whether the Court of Appeals misapplied State v. Chitwood, 370 Or 305 (2022), which had re‐examined the plain‐error standard in the context of unpreserved objections to prosecutorial argument.

Summary of the Judgment

The Supreme Court reversed the Court of Appeals and affirmed the circuit‐court convictions. Applying Chitwood’s two‐step framework, the court held that:

None of the three challenged comments by the prosecutor was “obvious and not reasonably in dispute” as improper.
Because the prosecutor’s statements could reasonably be understood in permissible ways (e.g., explaining the state’s burden of proof, urging careful deliberation), they did not meet Chitwood’s threshold that an improper argument be so prejudicial that no curative instruction could have preserved a fair trial.

The Court therefore declined to find plain error and affirmed defendant’s convictions.

Analysis

Precedents Cited

State v. Chitwood (2022): Refined plain‐error review for unpreserved objections to prosecutorial argument. Held that the defendant must show not only impropriety but also that the comments were “so prejudicial as to have denied [the] defendant a fair trial,” i.e. no curative instruction would suffice.
State v. Vanornum (2013): Plain error requires an error of law, obvious and not reasonably in dispute, and apparent on the record.
State v. Montez (1996): In preserved‐error context, improper prosecutorial comments warrant reversal only if they are so prejudicial that they deprived the defendant of a fair trial.
State v. Smallwood (1977): It is usually reversible error to comment on a defendant’s exercise of constitutional rights if jurors are likely to draw a prejudicial inference.
State v. Davis (2008): Trial court’s refusal to grant curative relief (instruction or mistrial) is reviewed for abuse of discretion; reversal is warranted only if the defendant was denied a fair trial.
Ailes v. Portland Meadows, Inc. (1991): Established Oregon’s three‐part plain‐error framework in civil context—error of law, obvious & undisputed, on the record—which courts have extended to criminal cases.

Legal Reasoning

The court applied Chitwood’s framework:

Obvious Impropriety? Each challenged remark was reviewed in context.
- “Misconception about the purpose of trial”—the prosecutor went on to explain that every defendant has a right to trial and that the state bears the burden of proof. It was not beyond dispute that this remark denigrated defendant’s constitutional right.
- “Just because there is a trial doesn’t necessarily mean there’s a controversy of fact”—in context it followed an explicit recitation of the state’s burden and argument that the state had met it, so the jury could reasonably have understood it as urging confidence in the state’s proof, not as shifting the burden to defendant.
- “The state is entitled to due process of your consideration”—the phrase echoed earlier calls for “due consideration” of each charge, and did not clearly assert a constitutional right in a way that conflicted with the court’s jury instructions.
Denial of Fair Trial? Because none of the remarks was indisputably improper, the court did not need to decide whether any curative instruction could have cured their prejudice. Under Chitwood, that question arises only if a defendant first shows obvious impropriety.

Impact

State v. Perez reaffirms the high bar for reversing convictions on plain‐error review of prosecutorial arguments:

Improper remarks must be clear and indisputable before an appellate court will consider prejudice.
Even clearly improper comments do not automatically mandate reversal; a defendant must then show that no curative instruction could have ensured a fair trial.
Prosecutors and trial judges retain broad discretion in closing arguments and curative measures, respectively. Defense counsel should continue to object timely to preserve appellate rights.

Practitioners will view Perez as a reminder that appellate relief for unpreserved objections to closing argument remains exceptional.

Complex Concepts Simplified

Plain Error: An unpreserved legal mistake so obvious that the appellate court may intervene even without an objection at trial.
Presumption of Innocence: The constitutional rule that a defendant is innocent until the state proves guilt beyond a reasonable doubt.
Burden of Proof: The state must convince the jury, beyond a reasonable doubt, of every element of the charged offense.
Curative Instruction: A direction by the trial judge telling the jury to disregard improper statements or evidence, designed to remove prejudice.
Sua Sponte: Latin for “on its own motion.” A trial court acts sua sponte when it intervenes without a request from counsel.

Conclusion

State v. Perez clarifies the application of the Chitwood framework: to succeed on plain‐error review of prosecutorial comments, a defendant must first show that the statements were obviously improper beyond reasonable dispute. Only then does the burden shift to showing that no curative instruction could have preserved a fair trial. In this case, three arguably clumsy rebuttal remarks did not meet that threshold. Perez thus reinforces that appellate intervention for closing‐argument errors remains rare and underscores the importance of timely objections and curative rulings at trial.