The Burton Rule: Defense Counsel’s Latitude to Emphasize the Absence of Testimony in Closing Argument

Introduction

In State v. Burton, 373 Or 750 (2025), the Oregon Supreme Court clarified the boundaries of permissible defense advocacy during closing argument. The case arose from Jayson Harrison Burton’s convictions for second-degree sexual abuse and third-degree rape. The central controversy concerned four statements made by defense counsel in closing argument that highlighted the State’s failure to present evidence of a police interview with the defendant or any admissions made during that interview. The trial court sustained the State’s objections to most of those statements and, sua sponte, instructed the jury that whether an interview occurred was “not important.”

On review, the Supreme Court balanced: (1) the defendant’s right to challenge the adequacy of the State’s evidence and investigation, (2) the prohibition on counsel presenting facts not in evidence, and (3) the trial court’s discretion to control argument. The Court ultimately affirmed the conviction but established a new, nuanced rule—the Burton Rule—regarding what defense counsel may say when the State elects not to introduce potentially relevant evidence it possesses.

Summary of the Judgment

The Court held that defense counsel may explicitly point out that the jury “didn’t hear” testimony about an interview or about admissions, even if counsel knows an interview occurred, so long as counsel does not invite the jury to find that no interview occurred.
The trial court correctly barred a statement implying the absence of any investigation (an inference unsupported by the record), but erred in preventing counsel’s later, narrower statement accurately reflecting the evidentiary record.
The error was deemed harmless in light of the totality of the evidence and remaining closing argument.
The defense failed to preserve an objection to the court’s sua sponte instruction; thus, the Court declined to decide whether that instruction constituted improper judicial comment on the evidence.
The decision articulates practical guidance on the “missing evidence” inference, clarifies the scope of cross-examination under OEC 611(2), and reiterates preservation and harmless-error doctrines.

Analysis

Precedents Cited

Cler v. Providence Health System-Oregon, 349 Or 481 (2010) – Recognized counsel’s “large degree of freedom” to comment on evidence but prohibited reference to matters outside the record. Provided the foundational language the Court quotes repeatedly.
State v. Banks, 367 Or 574 (2021) – Allowed defense to highlight missing video evidence and cautioned against arguments suggesting undisclosed evidence; relied upon to explain permissible “missing evidence” arguments.
State v. Oatney, 369 Or 555 (2022) and State v. Sperou, 365 Or 121 (2019) – Addressed limits of jury argument and vouching, emphasizing that counsel cannot argue beyond the admissible record.
United States v. Blueford, 312 F.3d 962 (9th Cir. 2002) – Quoted to underscore that counsel may not invite inferences counsel “knows to be false.”
Older Oregon authority—Huber v. Miller, Walker v. Penner, Tenny v. Mulvaney—supplied historical guardrails on inflammatory or extra-record argument.

These precedents shaped the Burton Court’s intricate line-drawing: counsel may exploit evidentiary gaps rooted in the prosecution’s burden, but must not mislead or lure the jury into speculation untethered from the record.

Legal Reasoning

Burden of Proof vs. “Missing Evidence” Inference
The Court distinguished between two related but separate doctrines: (a) a defendant’s right to remind jurors of the State’s burden and absence of proof, and (b) the formal “missing evidence” inference used when a party withholds evidence it naturally would produce. The Court concluded that Burton’s counsel did not need the “missing evidence” doctrine to make his point; he could simply rely on the presumption of innocence and the untouched record.
Scope of Cross-Examination Under OEC 611(2)
The prosecutor’s assumption that defense could not ask Detective Gay about the interview because the State had not opened the door was “likely incorrect.” Because the State questioned Gay broadly about her investigation, defense counsel could have cross-examined about the interview’s existence, duration, and absence of admissions without introducing defendant’s statements. This dicta will guide future trial practice.
Evaluation of Each Statement
• Statement 1 (“Maybe he wasn’t investigated”) – properly excluded; risked misleading inference that no interview or investigation occurred.
• Statement 2 – withdrawn; no ruling.
• Statement 3 (“So we have no admissions”) – permitted.
• Statement 4 (“You didn’t hear … they had interviewed”) – erroneously excluded; accurately recited record without suggesting a false fact.
Harmless-Error Analysis
Using State v. Davis and Henley, the Court assessed both “nature” and “context” of the error. Here, counsel still argued multiple investigative gaps and the ultimate “no admissions” point. Given other uncontested evidence and closing arguments, the Court saw “little likelihood” the ruling affected the verdict.
Preservation of Objection to Sua Sponte Instruction
Relying on State v. Skotland, the Court held a further objection was not futile; the trial judge showed willingness to accommodate counsel’s concerns. Without a timely objection, appellate review was foreclosed.

Impact of the Judgment

Clarifies Defense Advocacy Limits – Burton delineates a safe harbor: defense counsel may direct the jury’s attention to the absence of testimony without asserting the underlying fact is false or nonexistent.
Guidance to Trial Judges – Judges must distinguish between misleading argument and legitimate commentary on evidentiary gaps. Over-restraining truthful “you did not hear” statements risks reversible error.
Prosecutorial Strategy – The State can avoid speculation by introducing neutral evidence that an interview occurred without detailing inadmissible content. If it withholds the fact entirely, it cannot bar defense from noting that omission.
Cross-Examination Practice – Burton encourages broader use of OEC 611(2) and OEC 106 to explore investigative steps and lack of admissions, even if the State remains silent on direct.
Preservation Doctrine Reinforced – Even after extended colloquy, counsel must object to curative or limiting instructions lest appellate review be lost.
Appellate Harmless-Error Emphasis – The decision exemplifies Oregon’s fact-intensive harmless-error jurisprudence; not every mistaken restriction on closing requires reversal.

Complex Concepts Simplified

Missing Evidence Inference: If a party naturally would produce certain evidence but does not, the jury may infer that evidence would hurt that party. However, Burton shows the defense can often rely on the simpler “they didn’t prove it” argument instead of invoking this inference.
Misleading vs. Accurate “No Evidence” Statements: Saying “the State didn’t bring you this testimony” is acceptable; saying “there was no interview” is not, if counsel knows that is false. The distinction is between commenting on the record versus asserting facts outside it.
OEC 611(2) – Scope of Cross-Examination: Cross-examination need not mimic direct examination exactly; it may explore connected topics that shed light on the witness’s direct testimony—such as investigative steps omitted on direct.
Harmless Error: An error warrants reversal only if it probably influenced the verdict. Courts examine the entire record, not isolated snippets.
Preservation: To raise an issue on appeal, counsel must alert the trial court with a timely, specific objection unless doing so would be obviously pointless (futility). Burton underscores that futility is an exception, not the rule.

Conclusion

The Oregon Supreme Court’s decision in State v. Burton sets an important precedent governing closing arguments in criminal trials. Under the newly minted Burton Rule, defense counsel may forthrightly remind the jury of the State’s evidentiary omissions—such as the absence of testimony about a police interview—provided counsel does not mislead the jury into believing facts contrary to counsel’s knowledge. The opinion refines the relationship between the State’s burden of proof, the “missing evidence” inference, and ethical advocacy, while reaffirming preservation and harmless-error principles. Practitioners should heed Burton’s lessons: know the record, frame arguments precisely, object timely, and appreciate that sometimes the most potent defense point is an evidentiary silence the prosecutor chose to leave unfilled.