In a recent criminal trial at the U.S. District for the District of Puerto Rico, District Judge Carmen C. Cerezo did not allow 2 defense attorneys to use PowerPoint presentations in their closing arguments unless they were first shown to the prosecutor before the prosecutor made her own closing argument. This is quite surprising and we think it was an error on the Court's part to require counsel to show it to the prosecution as a condition to it being used at all. Counsel refused to do so --correctly, in my view-- and made their closing arguments without the PowerPoint presentation. I am informed that the Court did not give any explanation for its requirement that they be shown to the prosecutor before she allowed defense counsel to use their presentations during closing arguments. Nor did the Court allow counsel to argue the issue.
If the Judge wanted to ascertain that the presentations did not contain anything that was objectionable, she could have asked that they be shown to her outside the presence of the prosecutor. Requiring that it be first shown to the prosecutor was the equivalent of asking counsel to rehearse his closing argument to the prosecutor before he is allowed to make one at all. In our view, the Judge's ruling was not a proper manner of dealing with the situation.
But it is also my view that when faced with such a situation, it is incumbent upon defense attorneys to address the matter in an ex parte memorandum under seal, making a proffer of what the presentation consists of, and --if possible-- include printouts of the presentation in thumbnails (in this case I am told by one of the defense attorneys that it consisted of bulleted items he would use as he argued to the jury).
There is a big difference between using a PowerPoint presentation during opening statements, where anything of an argumentative sort may be objected, and using it in closing arguments.
This much is illustrated in Effective Use of Courtroom Technology: A Judge's Guide to Pretrial and Trial(from the Federal Judicial Center) which clearly distinguishes between use of, for example, PowerPoint presentations for opening statements, during trial, and during closing arguments. In pertinent part it states:
Closing argument can be made much shorter and better with the use of good illustrative aids. Lawyers tend to stay on point when guided by an organized presentation of the evidence and arguments. Fewer illustrative aids are objectionable in the context of a closing.
Occasionally lawyers are swept up in the enthusiasm of the moment and go beyond appropriate uses. In the early days of multimedia, plaintiffs’ lawyers in a 1988 Arizona case used a $17,000 18-minute video production entitled “The Titanic” which illustrated plaintiff’s point that the defendant accounting firm’s faulty audit sank the plaintiff bank. The video used scenes from the 1960s Titanic film “A Night to Remember.” Part of the film included the bank’s logo superimposed on a segment where water was pouring into the Titanic’s engine room. The final scenes showed empty life jackets floating on the water as the ship disappeared beneath the waves and the narrator intoned, “[the accounting firm] had numerous warnings [the bank] was in troubled water but also chose not to listen. … Perhaps they too thought they were invincible.” The jury awarded a $388 million verdict that was overturned by the trial judge for what appeared to be as many reasons as he could muster.
The court may want to look at a few kinds of displays in advance of closing arguments to protect against potential inappropriate uses.
- New material. Video, photographic, or graphics materials that have not been marked as exhibits in the case are at the head of the list of things that might usefully be disclosed so that the court can consider objections before closing argument starts. Lawyers occasionally get carried away with the possibilities for analogies. The standard bullet-point slides that lawyers use in closing argument also occasionally overstep the bounds of what is permitted, but the principal dangers of irretrievable prejudicial effect on the jury come from video, photo, or graphics materials. The Titanic film clip is an example in this category. Another example in this category (that can go either way) is using photos of witnesses that are single frames picked off deposition videos in order to remind the jury, in closing argument, about the witness testimony. Many jurors have more personal reactions to witnesses they liked and did not like when reminded by a photo.
- New sound, motion, or color. Exhibits in the case to which sound, motion, or color have been added for purposes of closing argument should also be reviewed in advance. Occasionally superimposing one exhibit on another falls into this category, although if both images are in evidence, superimposing one over the other would not usually be a problem. The principal danger, indeed often the objective, is that jurors will confuse the closing argument display with the real exhibit. This technique may be the only practical way for one side to tackle the other side’s most persuasive exhibit, but the court might want to see the proposed visual display in advance.
- Digitally altered photos. Although no digitally altered photos may have been used at trial, occasionally a point on closing argument can be made effectively by altering a photo to illustrate the point. Lawyers may want to change the photo to illustrate the persuasive nature of their own argument or the gaps in Part Four: Trial logic in their opponent’s argument. If it is not made very clear to the jury that the photo has been changed, there may be confusion in the jurors’ minds about the exhibits.
- Testimony from the transcript. It may be useful to a lawyer to invite close jury scrutiny of the testimony of a particular witness. One technique for doing this is to use portions of the transcript, enlarged on the projection screen or monitors, with underlining and labels as to page and line numbers. This is usually a suggestion to the jurors that they ask for the transcript and study it themselves. If the court does not plan to allow jurors to examine the written transcript, then it might be useful to review this type of display in advance and, at a minimum, require counsel to preface these remarks with the admonition that the trial transcript is not available in the jury room during deliberations. Even though counsel are now presenting arguments, and the narrower rules governing opening statements no longer apply, some displays may be so manipulative as to be unduly prejudicial or present a significant danger of confusing the jury.
In this case, rather than the Court examining the presentation or even thumbnail printouts, it instead required that counsel show the actual presentation to the prosecutor.
This should serve as a warning to all of us that the best approach is to broach these matters with the Court even before trial, with sufficient time to submit to the Court any arguments and thus, essentially, educate the Court.