Representing the Accused: A Practical Guide to Criminal Defense
In People v. Cheryl Santiago, 2014 N.Y. Slip Op. 01261 (2/25/14) the Court of Appeals addressed several issues, including sufficiency of the corroboration of defendant’s confession, admissibility of letters (with sexual content) written by the defendant to another inmate who testified about alleged admissions she made to him and the use of a Powerpoint presentation by the prosecution during summation. The defendant had been convicted of murder in the second degree following the suffocation death of her toddler stepdaughter.
The Powerpoint issue is what caught my attention. What is the place of Powerpoint in a summation or trial? I haven’t caught up with the technology in my trial practice, but this is certainly an area where we will have to become fluent. What if the slides use words? Are they demonstrative evidence that still have to be marked? How does one do that? What happens when you have parts of a Powerpoint that are animated? How is that reflected in the transcript?
In Santiago, the Powerpoint took the same period of time that supposedly passed during the child’s suffocation. Postmortem slides of the child in the Powerpoint were displayed on the screen, introduced by the prosecutor, “[I]f there’s any question in your mind how long six minutes take, take a look at this.” The slides showed a postmortem photo (or photos), changing at regular intervals, each successive slide fading, until the last one was white. Some had captions: “‘one and a half to two minutes, struggle ends, and ‘four minutes, brain death occurs…”
Here’s what the Court wrote, in holding that the issues involving the Powerpoint were not preserved for review,:
In summation, ‘counsel is to be afforded ‘the widest latitude by way of comment, denunciation or appeal in advocating his cause’ ‘(cites omitted), though within limits that are principally those of relevance (cite omitted). Had defense counsel objected, the trial court would have had the opportunity to decide whether the challenged aspect of the Powerpoint presentation constituted ‘a fair comment on the evidence’ or was instead ‘totally irrelevant to any legitimate issue presented at the trial (cites omitted).” The Court stated that “[w]hether the trial court would have been required by the law to sustain an objection to the entirety of the Powerpoint presentation is not clear from this record…The slides depicting an already admitted photograph with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury’s emotions….On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30 second intervals over a six-minute period – with each slide fading more and more to white, and the final slide appearing totally white – is difficult to discern. This did not show how Justice’s death occurred nor would it have aided the jury in its fact-finding function
Justice Rivera’s dissent provides some guidance on the objection to make regarding Powerpoint presentations:
Defense counsel’s failure to object to the prosecutor’s use during summation of a Powerpoint presentation that manipulated the evidence, and was designed to inflame the passion of the jury in order to engender prejudice against the defendant, constitutes an error of the type that so tainted the jury’s deliberative process as to deny defendant a fair trial.
Judge Rivera continued:
We have admonished that the prosecutor’s summation ‘should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a decided tendency to prejudice the jury against the defendant (cites omitted). Where a prosecutor’s summation ‘venture[s] well beyond the evidence and the bounds of fair comment,’ a defendant is deprived of a fair trial (cites omitted)….Summation ‘must stay within ‘the four corners of the evidence’…and avoid irrelevant comments which have no bearing on any legitimate issue in the case (cites omitted)..
The dissent contains a great discussion of what is permissible in a prosecutor’s summation.
So if there is a Powerpoint used during summation, consider the following:
1. Is it accurate in its depiction of an aspect of the case? (Justice Rivera noted the disappearing corpse did not accurately reflect the appearance of the child during that six minutes.)
2. Is its emphasis to inflame the passion of the jury, rather than review the evidence?
3. Make sure you object – with descriptions of what is depicted, whether it is animated, perhaps the time it is taking, what effects are being used, the jury’s reaction, and why it is more prejudicial than probative – inflaming passions of jury? Mischaracterizing the evidence? Inaccurately depicting it?
4. Make sure the Powerpoint is marked and preserved.
5. What kind of instruction can you request if the Powerpoint went over the line? Ask the Judge to have the jury disregard? Remind them they are not to decide the case based on emotion, but instead the law and facts? Does it warrant a mistrial if it’s part of a pattern of prosecutorial misconduct?
Justice Rivera goes on to note:
With the ever increasing use of technology and ease with which evidence may be presented, even with minimal computer resources, we must be mindful of the impact of technology on events in the courtroom, and, most especially, on the criminal justice system. It is easy to view the use of certain technological devices in the courtroom as merely another way of presenting evidence. We cannot forget, however, that technology also serves as a powerful tool to communicate images and concepts in ways that engage the jury distinctly, and perhaps more effectively, than the spoken word. This is no less true during summation, when “any argument that drones on for 5 or 10 minutes on any one point, regardless of how effective its content is, will lose the jury” (Thomas A. Mauet, Trial Techniques 394 [8th ed 2010]). Visual aids are a welcome relief since “[b]y the end of the trial, jurors are looking for new and fresh ways of receiving evidence and arguments” (id.). The use of technology at the end of closing argument may be particularly powerful. As one commentator has noted, “[t]he right to the final word has a psychological impact that makes it a forensic prize” (Siegel, NY Prac § 397 at 692 [5th ed 2011]).
