650 June 17, 2026 No. 554
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DUANE ROBERT SNYDER,
Defendant-Appellant.
Multnomah County Circuit Court
20CR63487; A181161
Eric L. Dahlin, Judge.
Submitted January 21, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla Edmondson, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.*
HELLMAN, J.
Reversed and remanded.
* Lagesen, C. J. vice Mooney, S. J.
Cite as 350 Or App 650 (2026) 651
HELLMAN, J.
Defendant appeals a judgment of conviction for one
count of fourth-degree assault constituting domestic violence. In his only assignment of error, defendant contends
that “the trial court erred when it denied defendant’s motion
for a mistrial.” For the reasons below, we agree with defendant. We reverse and remand for further proceedings.
I. BACKGROUND
The relevant facts are undisputed. Defendant was
charged with one count of fourth-degree assault constituting domestic violence after an alleged altercation with a
person with whom he resided. The state’s theory at trial
was that defendant assaulted the complainant in the process of telling her that she needed to leave the home that
she shared with defendant and his father. Defendant’s theory at trial, as set forth in his opening statement, was that
he told the complainant that she needed to leave the home
and the complainant, who was on “supervised probation
for a domestic violence assault,” called 9-1-1 and lied about
defendant assaulting her in an effort to “use the system in
her favor.”
During defendant’s trial, an officer testified as to
his conversation with defendant after the officer arrived at
defendant’s house to arrest defendant. As relevant to the
issue on appeal, the officer testified that defendant “invoked
his rights” after the officer “Mirandized” defendant:
“[PROSECUTOR:] Okay. And so when you arrived at the
[defendant’s] residence, what did you do?
“[OFFICER:] I—I confirmed [defendant’s] cars that were
there by running their license plates, and it did belong to
him.
“[PROSECUTOR:] Okay.
“[OFFICER:] And then I knocked on the door and contacted him.
“[PROSECUTOR:] Okay. And what did he say?
“[OFFICER:] I asked him to step outside, and we placed
him under arrest.
652 State v. Snyder
“[PROSECUTOR:] Okay. And did you ask [defendant] if
he touched or hit [the victim] at all?
“[OFFICER:] I—I would—after my post Miranda, or—
“[PROSECUTOR:] Yes.
“[OFFICER:] I had Mirandized him, and he invoked his
rights.”
Given that testimony—and specifically the officer’s
reference to defendant’s invocation of his Miranda rights—
defendant moved for mistrial. Defendant argued that a mistrial was necessary because the state “clearly ask[ed] the
officer about the Defendant invoking his right to remain
silent.” The trial court recognized that the officer’s testimony was improper but indicated that it thought “a curative instruction would be appropriate” and “would actually
resolve [the] issue.” The trial court also noted its view that
evidence that a defendant “invoked,” at least in some circumstances, is “not that * * * different than the instruction
that [the court gives] to the jury about someone exercising
their right to remain silent” at the end of trial when a defendant does not testify, insofar as that instruction is “in itself effectively the same as saying [the defendant] invoked.”
The trial court also recognized, however, that a curative instruction might “draw more attention” to the improper
testimony, and asked defendant to decide if he wanted the
trial court to “give a curative instruction.” The trial court
noted that, if defendant did want a curative instruction, the
court, the defense, and the state, could “talk about what the
language would be.”1
In response to the trial court offering a curative
instruction, defendant noted that the officer’s testimony was
describing an “interview situation where [the prosecutor
1
In discussing the contours of such an instruction, the trial court noted that it could instruct the jury with an instruction that
“would say to the jury something that everyone’s got a—everyone has a right
to remain silent, and just as I would instruct the jury at the end of the trial
if he doesn’t testify that the—the jury should not infer anything about his
silence and—and—and decision not to testify seems like a curative instruction to just remind the jury of the right to remain silent and that it’s actually
a good thing.
“People should actually exercise that constitutional right.”
Cite as 350 Or App 650 (2026) 653
was] asking the officer * * * how he interviewed * * * the
Defendant, and then [the officer] specifically said [defendant] invoked his right to remain silent.” Defendant took
the position that “no curative instruction would be enough
to cure that prejudice” and an instruction would just “draw
more attention” to the improper testimony and make the situation worse. The trial court then denied defendant’s motion
for mistrial without giving a curative instruction.
After another witness had begun her testimony,
the court sua sponte returned to its ruling on defendant’s
motion for mistrial. Outside the presence of the jury, and
with the parties, it listened to the audio recording of the officer’s testimony. After listening to the audio recording and
reviewing relevant case law, the trial court stated that it
was struggling with “whether a curative instruction would
be appropriate, or if this is just a situation where the Court
of Appeals would say no curative instruction would be adequate.” It noted that the officer’s testimony, which reflected
that “[d]efendant didn’t answer any kind of question” about
whether he hit the alleged victim “because he invoked” his
right to remain silent, “certainly would suggest guilt” to
a juror. The trial court concluded that the testimony was
“clearly the kind of thing that requires some action,” either
a curative instruction or a mistrial.
However, the trial court ultimately adhered to its
prior decision to deny defendant’s motion for mistrial because
defendant had declined a curative instruction, even though
the trial court believed it could possibly “craft [a curative
instruction] that would hopefully un-ring the bell” and that
such an instruction would eliminate the need for a mistrial.
In making that ruling, the trial court correctly recognized
the lingering absence of direction in the case law regarding curative instructions; specifically, that “most of the time a curative instruction couldn’t fix the issue [but that that]
wouldn’t necessarily mean that there [aren’t] some times
where a curative instruction could fix the issue.” The trial
court also correctly recognized the difficulty in creating an
instruction that was not too “bland” and, at the same time,
would not “draw additional attention to this and cause further harm * * * for the defense case.”
654 State v. Snyder
After the conclusion of the presentation of evidence
and summation, the jury returned a guilty verdict on the
single count of fourth-degree assault. This appeal followed.
As noted, in his only assignment of error, defendant
contends that “the trial court erred when it denied defendant’s motion for a mistrial.”
II. ANALYSIS
A. Standard of Review
“When a party moves for a mistrial, the trial court
must decide whether to grant the motion, deny the motion
but take curative steps, or deny the motion without taking
any curative steps.” State v. Northey, 340 Or App 318, 330,
571 P3d 219 (2025) (emphasis added). Because the trial court,
not this court, “is in the best position to assess the impact
of the complained-of incident and to select the means (if
any) necessary to correct any problem resulting from it,” we
review the trial court’s decision among those three choices
for abuse of discretion. State v. Veatch, 223 Or App 444, 462,
196 P3d 45 (2008) (internal quotation marks omitted). In
that review, we take into consideration the “seriousness of
the prejudice and the manner in which the court sought to
cure the error, with the decisive issue [being whether defendant’s ability to receive a fair trial was impaired.” State v.
Kurz, 342 Or App 772, 785, 577 P3d 866, rev den, 374 Or 616
(2025) (internal quotation marks and brackets omitted).
Notwithstanding the general discretion that trial
courts have in ruling on a motion for mistrial, in some
cases, “the prejudice to the accused created by an incident
is so grave that a curative instruction is insufficient, and a
mistrial is the only legally acceptable alternative.” State v.
Evans, 211 Or App 162, 166, 154 P3d 166 (2007), aff’d, 344
Or 358, 182 P3d 175 (2008). At the other end of the spectrum, there are cases where it is “within the trial court’s
discretion to decline to declare a mistrial in the wake of a
potentially prejudicial incident,” without giving a curative
instruction, “if the court finds that the incident was sufficiently inadvertent and isolated so as to not compromise a
fair trial.” Id. at 168. And, lying in the middle of those two
categories of cases, are cases where “the decision to deliver
Cite as 350 Or App 650 (2026) 655
curative instructions rather than to declare a mistrial
remains within the ambit of the court’s discretion.” Id. at
167.
B. Law on Improper References to Invocation of Constitutional
Rights
A prosecutor is not permitted to comment on or
solicit evidence concerning a defendant’s invocation of a
constitutional right under circumstances in which the jury
is likely to draw a negative inference from the exercise of
that right. See State v. Durant, 327 Or App 363, 368, 535
P3d 808 (2023), rev den, 374 Or 143 (2025) (so noting regarding comments made during closing argument); State v.
Smallwood, 277 Or 503, 505-06, 561 P2d 600, cert den, 434
US 849 (1977) (“There is no doubt that it is usually reversible error to admit evidence of the exercise by a defendant
of the rights which the constitution gives him if it is done in a context whereupon inferences prejudicial to the defendant
are likely to be drawn by the jury.”). That is because reference “to a defendant’s exercise of a constitutional right” can
“jeopardize[ ] the right to a fair trial if the jury was likely to infer that the defendant had exercised the right because he
believed that he was guilty of the charged offense.” State v.
Schumacher, 315 Or App 298, 301, 500 P3d 698 (2021).
One such constitutional right—the right at issue in
this case—is the right to remain silent, guaranteed under
Article I, section 12, of the Oregon Constitution and the
Fifth Amendment to the United States Constitution. State
v. Castillo, 295 Or App 121, 127, 433 P3d 467 (2018), rev den,
364 Or 749 (2019) (“Under Article I, section 12, of the Oregon
Constitution, individuals have a right against compelled selfincrimination in criminal prosecutions, including the right
to remain silent.”); Miranda v. Arizona, 384 US 436, 467-68,
86 S Ct 1602, 16 L Ed 2d 694 (1966) (recognizing that the
Fifth Amendment includes a “right to remain silent”).
It is usually the case that jurors will infer guilt
from a defendant’s invocation of the right to remain silent.
See State v. Ashbaugh, 330 Or App 680, 690, 544 P3d 414,
rev den, 372 Or 588 (2024) (recognizing that “the connection
between silence and guilt is often too direct and too natural
656 State v. Snyder
to be resisted” by a jury (internal quotation marks omitted));
see also State v. White, 303 Or 333, 342 n 7, 736 P2d 552
(1987) (“For the judge or prosecutor to call it [a defendant’s
silence] to the jury’s attention has an undeniably adverse
effect on the defendant.” (Quoting Lakeside v. Oregon, 435
US 333, 345, 98 S Ct 1091, 55 L Ed 2d 319 (1978) (Stevens,
J., dissenting); brackets in White.)). As a result, we “presume” that a prosecutor’s reference “to a defendant’s silence
* * * [is] harmful” to the defendant. Ashbaugh, 330 Or App
at 686; see also State v. Larson, 325 Or 15, 22, 933 P2d 958
(1997) (the “Oregon Constitution does not permit a prosecutor to draw the jury’s attention to a defendant’s exercise of
the right to remain silent”).
That said, not every reference during trial to a
defendant’s exercise of a constitutional right is per se prejudicial. See, e.g., State v. Larson, 325 Or 15, 24-25, 933 P2d
958 (1997) (concluding that “the context of the prosecutor’s
improper comment was not one in which inferences prejudicial to defendant were likely to have been drawn by the jury”
where the prosecutor “made only a single reference to defendant’s ability to testify” and, although “the jury was present, the comment was directed to the judge, not to the jury,”
and was made in “frustration” in “the context of objecting
to defendant’s repeated attempts to introduce inadmissible
hearsay”).
C. Ruling on Motions for Mistrial
If a defendant moves for a mistrial based on a prosecutor referencing or eliciting evidence concerning a defendant’s invocation of a constitutional right, a trial court must first determine whether the jury is likely to draw an inference of guilt from that reference. See id. at 24-25; Schumacher,
315 Or App at 307. If the trial court determines that the jury
is unlikely to draw such an inference, because, for example,
the incident was “sufficiently inadvertent and isolated so as
to not compromise a fair trial,” it may be permissible for
the trial court to “decline to declare a mistrial in the wake
of a potentially prejudicial incident,” without taking curative steps. See Evans, 211 Or App at 168. If, however, as here, the trial court determines that the jury is likely to draw an
inference of guilt from the invocation, the trial court’s range Cite as 350 Or App 650 (2026) 657
of permissible choices becomes constrained in two important ways.
First, when a defendant moves for mistrial based
on a prosecutor referencing or eliciting evidence of a defendant’s invocation of a constitutional right, from which the
jury would likely draw an inference of guilt, it is error for
the trial court to do “nothing.” Schumacher, 315 Or App
at 307 (“In light of our reversals in cases where the trial
court did something to cure the prejudicial impact, it strikes
us that, when a trial court does nothing, it would be error
to affirm.” (Emphases in original.)). As discussed further
below, that is true even when “the defendant declines a curative instruction,” because “it is the court, not defendant, that must decide whether and how to cure the prejudicial effect
of improper testimony.” Id. (internal quotation marks omitted); see also State v. Alvord, 118 Or App 111, 115, 846 P2d
432 (1993) (“Although it is normally the defendant’s duty to
request a curative instruction, the Supreme Court has said
that, when a prosecutor has made an improper statement
about a defendant’s exercise of the right to remain silent,
the trial court has a duty to allow a timely motion for a mistrial or to cure the effect of the improper comment by giving
a proper instruction.”).
Second, the ability of a trial court to deny the motion
but take curative steps is cabined by the reality that in order for a curative instruction to be effective, it must achieve the “perhaps impossible” task of “negating the inference that
the defendant invoked his or her rights because of his or her
consciousness of guilt.” State v. Hunt, 297 Or App 597, 606,
442 P3d 232 (2019). That task is perhaps impossible because,
under our case law, as we understand it, in crafting such an
instruction, the inference of guilt must be “negated” without
(1) ignoring the inference and simply telling the jury to disregard the problematic statement, or (2) drawing additional
attention to the inference, thereby potentially increasing
the prejudice. Compare State v. Osorno, 264 Or App 742, 745,
333 P3d 1163 (2014) (curative instruction telling the jury to
“disregard the last statement,” as it was “not information
that [the jury could] consider in deciding this case,” after an officer testified that the defendant told him that she did not
658 State v. Snyder
“want to say anything incriminating,” was insufficient to
cure prejudice, because “no part of the instruction negated
the inference that defendant made the statement [that she
did not want to say anything incriminating] because she was
conscious of her guilt”), with State v. Hylton, 316 Or App 270, 271, 501 P3d 1081 (2021) (curative instruction insufficient
to cure prejudice where the trial court instructed the jury
“not to draw an adverse inference from defendant’s invocation” because the instruction, although “well-intended,” may
“well have exacerbated the adverse effect of the improper
references” by “explicitly describ[ing] the adverse inference
of guilt that the jury might reasonably draw from defendant’s invocation of the right to remain silent”).
Indeed, in Ashbaugh, a case in which the defendant
did not object or move for a mistrial, we reversed a conviction due to the prosecutor referring to the defendant’s “exercise of his right to remain silent,” noting the “likely insufficiency of a curative instruction” had defendant objected and
had a curative instruction been given. 330 Or App at 681,
690. Ashbaugh is particularly significant because, as noted,
the defendant in Ashbaugh did not object or move for a mistrial and, therefore, the question before us was whether “any
curative instruction by the trial court would * * * have been
effective.” State v. Perez, 373 Or 591, 606, 568 P3d 940 (2025) (describing standard of review in such circumstance under
State v. Chitwood, 370 Or 305, 312, 518 P3d 903 (2022)
(emphasis added)).
Thus, the practical effect of our case law is that
declaring a mistrial is likely the only permissible exercise of the trial court’s discretion when the following conditions are
met: (1) the defendant moves for a mistrial; (2) the motion
is based on an impermissible reference to defendant’s invocation of constitutional rights; and (3) the trial court determines that the jury is likely to infer guilt from that impermissible reference. That is because, as explained above, if
trial courts do nothing in that circumstance—even when
they do nothing because the defendant objects to a curative
instruction being given—the result is likely to be reversal
on appeal. Schumacher, 315 Or App at 307. And if a trial
court attempts to cure the prejudice by giving a curative
Cite as 350 Or App 650 (2026) 659
instruction, it is likely that, on appeal, we will conclude that the instruction was insufficient to cure any prejudice; again,
leading to a reversal on appeal. As noted, crafting a curative
instruction in such a circumstance is a “perhaps impossible”
task. Hunt, 297 Or App at 606.
We hope that our clear statements about the practical effect of our case law will lead prosecutors to intensify their efforts to make sure that they do not “elicit any
evidence concerning [a] defendant’s exercise of [their] constitutional rights,” Alvord, 118 Or App at 116 (recognizing
the existence of that duty), including through preparation
of law enforcement witnesses, so that all defendants receive
a fair trial. It is also our hope that providing clarity in the law will support and encourage trial courts, where appropriate, in their decisions to grant motions for mistrial. That is
because, although we have frequently stated that “a mistrial
is a drastic remedy to be avoided,” e.g., Kurz, 342 Or App at
786 (internal quotation marks omitted), it is also the case
that a trial court giving an ineffectual curative instruction
or no curative instruction at all after a prejudicial reference to a defendant’s invocation of a constitutional right is
made will frequently lead to reversal on appeal.2 That leads
to unnecessary delays in the resolution of cases, which is
harmful for victims, the accused, and society more broadly.
See, e.g., Barker v. Wingo, 407 US 514, 527, 532, 92 S Ct 2182, 33 L Ed 2d 101 (1972) (recognizing both that “society has a
particular interest in bringing swift prosecutions” and that
delay in bringing a case to trial can cause prejudice to a
defendant).
D. Application
Having described the legal framework in which this
appeal comes before us, we turn to our analysis. As noted,
defendant contends that the trial court abused its discretion
when it denied his motion for a mistrial. In response, the
state contends that, to the extent the trial court erred, it
was only because defendant invited that error by declining
2
We observe that granting a mistrial also avoids the unusual and difficult situation when a trial court is forced to override a defendant’s trial strategy by giving a curative instruction to address a prejudicial error on the part of the state.
660 State v. Snyder
the trial court’s offer to give a curative instruction. We
address the state’s invited error argument before turning to
the merits.
1. Invited error
As an initial matter, we reject the state’s invited
error argument because it is foreclosed by our analysis in
Schumacher.
In Schumacher, after an officer testified to the
defendant’s invocation of the right to counsel, the defendant
moved to strike the testimony, and the court noted that it
would offer a “curative instruction, which I would envision
[the defendant] preparing.” Id. at 300. The defendant then
moved for a mistrial, and the state replied “that a curative
instruction would address the issue, and that if it had been
error, the error was ‘harmless.’ ” Id. The court “agreed with
the state and denied the motion for mistrial.” Id. Later, near
the end of trial, “out of the jury’s presence, the court asked
defendant if he had ‘put together some kind of a curative
instruction’ ” and “defendant replied that he had decided
not to offer one because he would ‘rather not emphasize it
more to the jury.’ ” Id. at 300-01. After he was convicted, the defendant appealed the resulting judgment, assigning error
to the trial court’s denial of his motion for a mistrial. Id. at 299.
We reversed, concluding that the trial court erred.
We first explained that the jury “could have inferred from the
officer’s mention of defendant’s invocation” and the circumstances thereof that the defendant’s “request for a lawyer
was a tacit admission of guilt.” Id. at 304. We then explained
that, “[i]n light of our reversals in cases where the trial court did something to cure the prejudicial impact [of improper
testimony], it strikes us that, when a trial court does nothing, it would be error to affirm,” even “when the defendant
declines a curative instruction.” Id. at 307 (emphases in original). That is because when a defendant moves for mistrial
on the basis of improper and prejudicial testimony—at least
when the testimony has been elicited by the prosecutor—it
is “the court that must decide whether and how to cure the
prejudicial effect of improper testimony,” and on appeal “we
Cite as 350 Or App 650 (2026) 661
evaluate the trial court’s decision on the matter, rather than
defendant’s.” Id. at 306-07 (emphases added).
We further explained in Schumacher that, “although
it is true that the trial court is in the best position to assess the impact of the complained-of incident and to select the
means necessary to correct any problem resulting from
it,” the trial court “abuses its discretion when it selects a
means that does not produce a permissible, legally correct
outcome,” which is one where “the state did not benefit from
an inference that penalized defendant’s exercise of a constitutional right.” Id. at 307.
Here, as in Schumacher, when faced with defendant’s motion for mistrial, it was the trial court (and not
defendant) that was required to “decide whether and how to
cure the prejudicial effect of improper testimony.” Id. Under
Schumacher we are thus tasked with evaluating “trial
court’s decision on the matter, rather than defendant’s.” Id.
at 306. The question before us is whether the trial court’s
decision resulted in a “legally correct outcome,” which is
one where “the state did not benefit from an inference that
penalized defendant’s exercise of a constitutional right.” Id.
at 307. Defendant neither invited the improper testimony
that penalized him for the exercise of his constitutional
right to remain silent nor invited the denial of his motion for mistrial.3 Thus, we reject the state’s invited error argument
as foreclosed by Schumacher.
In seeking a different result, the state argues that
Schumacher is inapposite because it “stands for the proposition that a trial court, confronted with testimony that a
defendant invoked a constitutional right that may give rise
to an inference of the defendant’s guilt, may not put the
burden of crafting a curative instruction on the defendant
and then do nothing if the defendant continues to request
3
In that regard, we note that defendant, like the defendant in Schumacher, assigns error to the trial court’s denial of his motion for a mistrial, not to the court’s failure to give a curative instruction. We have routinely analyzed the merits of a mistrial ruling, even when the defendant refused a curative instruction. See, e.g., Evans, 211 Or App at 169 (recognizing that defendant declined a curative instruction but proceeding to analyze the merits of the mistrial ruling). It may be that, if defendant had assigned error to the court’s failure to give a curative instruction, that error, if cognizable, would have been invited. But that issue is not before us.
662 State v. Snyder
a mistrial.” Although the state accurately points to factual
distinctions between this case and Schumacher, those differences do not undercut the holding of Schumacher that it
is the trial court—and not the defendant—that is required
to “decide whether and how to cure the prejudicial effect of
improper testimony” after a defendant moves for mistrial.
Id. at 307.4
2. The merits
Having rejected the state’s invited error argument,
we turn to the merits. The threshold question for our analysis
of the merits is whether “the jury was likely to infer that the defendant had exercised the right because he believed that
he was guilty of the charged offense.” Id. at 304. Here, the
trial court expressly determined that defendant’s invocation
under the circumstances “certainly would suggest guilt.” We
see no error in that assessment. See id. (noting that even a
“single statement apparently unintentionally elicited” may
require a mistrial “unless the surrounding context of the
reference is of the kind that would draw the jury’s attention
away from the inference of guilt”).
Therefore, we proceed to assess whether the trial
court’s decision not to provide a curative instruction and to
deny the motion for a mistrial amounted to an abuse of discretion. We conclude that it did, because, as described above,
taking no action to cure the prejudicial impact of evidence of
an invocation of constitutional rights amounts to an abuse
of discretion. Id. at 307-08. Consequently, we reverse and
remand.
Reversed and remanded.
4
Another factual distinction between this case and Schumacher is that in Schumacher the defendant was asked near the end of trial if he had prepared a curative instruction and we concluded that, at that point, “a curative instruction * * * could not ‘unring the bell’ ” because it would have been “not timely.” See id. at 305, 307. But that factual difference between this case and Schumacher also does not undercut the rationale of Schumacher as applied to this case.