Matthew T. Mangino
January 2, 2015
During the last two years, nearly a dozen U.S. courts have reversed criminal convictions because prosecutors ran amuck with the rules of court while making PowerPoint presentations to a jury.
Recently, the Marshall Project, a non-partisan criminal justice news service, reported that prosecutors across the country have violated rules of criminal procedure through the overzealous use of PowerPoint.
PowerPoint presentations consist of a number of individual pages or “slides” — reminiscent of an overhead projector with lots of bells and whistles — displayed through a screen projection generated by a computer.
Slides may contain text, graphics, photographs, sound and even movies. The presentation can be printed, displayed live on a computer, or navigated through by the presenter. Most often the computer slides are projected on to a screen for viewing by an audience.
Since Microsoft launched the slide show program 22 years ago, it has been installed on more than 1 billion computers with an estimated 350 PowerPoint presentations given each second around the world. PowerPoint users continue to prove that no field of human endeavor can defy its facility for reducing complexity and nuance to bullet points, reported Businessweek.
It was only logical that PowerPoint would seep into the courtroom. Even in cases where PowerPoint did not result in a court decision being overturned, appellate courts have taken note of the improper use of the software.
As the Marshall Project suggested, “prosecution by PowerPoint” must be reined in. “It’s the classic ‘A picture is worth a thousand words,’” Eric Broman, a Seattle attorney, told the Marshall Project. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”
Often the improper use of PowerPoint occurs during closing arguments when prosecutors are summing up the evidence of trial and making a final pitch to the jury to convince them the state has proven the defendant guilty beyond a reasonable doubt.
During closing arguments prosecutors have turned to “visual advocacy.” Computer-aided presentations have at times crossed the line. For instance, plastering the word “guilty” across a defendant’s photograph. One court noted that “guilty” is almost always written in red letters — the “color of blood.”
Recently, according to the Marshall Project, the Missouri Court of Appeals ruled in a case where the prosecution, in its closing argument, presented a slide showing the defendant in a booking photo wearing his orange jail jumpsuit.
As the appeals court noted, the state would never force a defendant to appear before a jury in jail clothing. To do so would undermine the presumption of innocence. The prosecution’s use of the booking photograph had the same effect.
According to the American Bar Association, closings arguments should focus on the facts presented at trial, reasonable inferences drawn from those facts, and accurate legal principles.
Lawyers are “public citizens having a special responsibility for the quality of justice,” according to the ABA Model Rules of Professional Conduct. Lawyers, especially prosecutors, who infect the decision-making process with factors outside the evidence and law, are not only risking the scorn of the court, but the wrath of the bar.
At times, during the modern era of criminal jurisprudence, courts have had to play catch-up with technology. For example, the Supreme Court put limitations on the use of thermal imaging surveillance equipment used to detect drug manufacturing inside homes and earlier this year, the Supreme Court ruled that police need a search warrant to access information on a cellphone.
PowerPoint presentations that attempt to convey on a screen in front of a jury what a lawyer could not convey in person, will no doubt soon get the attention of policymakers across the country.
Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George. His book, “The Executioner’s Toll, 2010,” was released by McFarland Publishing. You can reach him at mattmangino.com and follow him on Twitter at @MatthewTMangino.
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