The Prejudicial Power of PowerPoint

This wikilog article is a draft, it was not published yet.

by: • December 11, 2014 • no comments

PowerPoint and similar computerized visual aids have found a prominent place in CLE presentations and other types of informational gatherings. In one setting, however, they can lead to problems. Used before a jury, they can damage the defendant’s right to a fair trial. The recent decision in State v. Reineke, 2014 WL 5241489 (Or App 2014), exemplifies this danger.

In Reineke, the defendant was on trial for the murder of his mother. When read his Miranda rights, the defendant stated that he did not want to talk and he invoked his rights to remain silent and to counsel.

During her closing argument, the prosecutor displayed a PowerPoint presentation with several slides. To each slide, the prosecutor appended a phrase concerning the evidence, such as the DNA. One such phrase was: “His refusal to speak at the police station.” Like the other phrases on the slide, an arrow pointed from that phrase to the defendant’s picture. One slide presented the defendant’s photograph at the center with the word “GUILTY” in large red capital letters underneath it. And the arrow from the slide about his refusal to speak to the officers not only pointed at his picture but also directly to the word “GUILTY.” Defense counsel objected to each of the slides.

The Court of Appeals ruled that the trial court committed reversible error in overruling defense counsel’s objection to the slides and to the argument. The court held that “[t]he prosecutor could not argue the 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 further emphasized that even if evidence of this type was admissible, the state could not use it as evidence of guilt. Another example of PowerPoint misuse took place in a Missouri courtroom. There, during closing argument in a drug case, the prosecutor flashed a mugshot of the accused, clad in bright orange clothing, on the screen. To make matters worse, the word “GUILTY” was emblazoned across the photograph. The appellate court chastised the prosecutor, stating that the image clearly disparaged the defendant’s presumption of innocence. The court wrote:

Giving the State the widest possible latitude, there is still no rational justification for the prosecutor’s use of the mug shot during closing argument. Showing Walter wearing an inmate uniform with the word “GUILTY” prominently displayed across his face added nothing to the State’s argument. Rather, the only purpose it could have served was to portray Walter in a negative light to the jury. Accordingly, the prosecutor injected incompetent and potentially prejudicial matters into its closing argument by displaying an altered piece of evidence to the jury for the sole purpose of affecting the jury’s opinion of the defendant.

Thus, there is no question that the prosecutor’s use of the altered mug shot was improper.

In an even more recent case from New Jersey, the defendant was charged with attempted murder, based on an incident in a bar that ended badly in the parking lot. The defense was self-defense. This time, the prosecutor used the PowerPoint in his opening statement as well:

The PowerPoint’s twenty-first and final screen contains a photograph showing defendant’s face and neck, which is displayed with a bright red border. It also includes text, printed in the same color and density, “Defendant GUILTY OF: ATTEMPTED MURDER.” The words “Defendant” and “GUILTY OF:” appear on separate lines to the right of defendant’s photograph, and “ATTEMPTED MURDER” appears below the photograph in much larger typeface.

While defense counsel registered a timely objection to the slide, the trial judge, shockingly, found nothing prejudicial in it.

Then, during closing argument, the prosecutor again deployed PowerPoint. One slide contained a caption asserting: “CANNOT BRING A KNIFE TO A FIST FIGHT.” Another stated: “NO SELF DEFENSE TO USE DEADLY FORCE.” The prosecutor concluded his summation by declaring the defendant guilty. During his summation PowerPoint show, he again used the slide from the opening statement. On appeal, the state’s appellate division found that this and other prosecutorial misconduct during the trial warranted reversal. The court held that “the oversimplifications were prejudicial to a claim of self-defense by a defendant who claimed to have taken his work knife from his pocket to defend against what he claimed he thought was an imminent and life-threatening attack by the [others].”

A more subtle yet still improper use of PowerPoint took place in a California jury trial. In that case, the prosecutor used Power Point to illustrate the concept of reasonable doubt. As described in a later opinion:

When the program was started, six puzzle pieces came onto the screen sequentially. The puzzle was of the Statue of Liberty. The appellate court noted the image was immediately and easily recognized. The PowerPoint presentation stopped after six of the eight puzzle pieces were in place. During the presentation, the prosecutor told the jury they all knew what the puzzle depicted without the need of all the pieces of the puzzle. The defense objected to the argument and use of the PowerPoint presentation because it demeaned the reasonable doubt instruction.

The appellate court first reviewed a case from New York, People v. Wilds (N.Y. App. Div.1988) 141 A.D. 2d 395, 529 N.Y. S.2d 325, wherein the trial judge used a jigsaw puzzle of Abraham Lincoln to illustrate the judge’s point that the jury need not have all of its questions answered in order to convict the defendant. The New York appellate court found the trial court erred in its demonstration because “‘the average American juror would recognize a jigsaw puzzle of Abraham Lincoln long before all the pieces are in place. Obviously, this is not the quantum of proof required in a criminal case.’ [Citation.]” The Katzenberger court concluded that just as the average juror would recognize the picture of Abraham Lincoln before all the pieces of the puzzle were in place, the prosecutor’s use of the image of the Statue of Liberty would be recognized by most jurors “well before the initial six pieces are in place.” The court concluded, “The presentation, with the prosecutor’s accompanying argument, leaves the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence. It invites the jury to guess or jump to a conclusion, a process completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.”

The court found an additional problem with the prosecutor’s use of the puzzle. After reviewing two appellate decisions from out of state, the court found the prosecutor’s argument contained an improper quantitative component. By using an eight-piece puzzle and arguing the puzzle is solved after only six of the pieces are in place, the prosecutor in effect “inappropriately suggest[ed] a specific quantitative measure of reasonable doubt, i.e., 75 percent.” The court concluded “[t]he prosecutor’s use of an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt.”

Certainly, PowerPoint can be used both effectively and properly. By both sides. In a case quoted in the Rivera opinion, the Nevada Supreme Court recognized that PowerPoint “as an advocate’s tool, is not inherently good or bad,” and that “its propriety depends on content and application.” Thus defense counsel should be alert to potentially prejudicial use of such slides. Where possible, counsel should seek an advance screening of the prosecution’s visual presentation and register prompt objections to any objectionable portions. Should the objections be overruled, make a motion for mistrial and also make the offending slides part of the record for appeal. Also, state for the record the approximate duration that the slides were visible to the jury.

This is a developing area of the law, and counsel has an opportunity to shape the law with respect to this new age of courtroom technology.

Endnotes

OCDLA Member Tony Bornstein is with the Federal Public Defenders Office in Portland. This article originally appeared in the November/December 2014 issue of The Oregon Defense Attorney journal.