Prosecutor's Powerpoint did not deprive Defendant of Fair Trial

Criminal trials are tense and (there are books written regarding this one topic) prosecutor's statements may sometimes inappropriately impact the juror's good sense in coming to a fair decision. At the same time, Criminal Defendants, once convicted of a crime, will often look for many different reasons to appeal their sentence, from deprivation of a fair trial to the mishandling of the jury's question. Those found guilty of a crime usually have ample time to do this while incarcerated. Here, the "Defendant maintains that he was deprived of a fair trial by the People's PowerPoint presentation, particularly insofar as it displayed slides that contained annotated images of trial exhibits."

"It is well-settled that attorneys are entitled to broad latitude in commenting on pertinent matters of fact in summation, so long as they limit themselves to relevant matters within the four corners of the evidence. People v Ashwal, 39 NY2d 105, 109 [1976]. The prosecutor cannot, however, refer to matters not in evidence or ask the jury to "draw conclusions which are not fairly inferrable from the evidence." Id. at 109-110 (citations omitted).

The Defendant was charged with, among other things, burglary in the first degree, assault in the second degree and criminal possession of a weapon in the second degree. It is alleged that several men broke into the victim's apartment and the Defendant shot the victim, cut him with a knife and poured bleach over his head. The victim identified (knowing him previously) the Defendant, the prosecutor introduced surveillance footage and still photographs of the footage showing the six individuals (those several men) walking along the sidewalk and, later, running into the victim's building. The victim's brother was also called as a witness although he was not present at the time these events occurred.

In summation, the prosecutor displayed a PowerPoint presentation containing slides of images of the trial exhibits, some of which had been annotated through the PowerPoint program with text, circles or arrows. Significantly, the prosecutor displayed slides depicting the still photographs from the surveillance video that he had showed the victim's brother, which had been annotated with captions such as, "[the victim's brother's t]ruck" and "[the victim's brother] sees Defendant," despite the witness's inability to make those definitive identifications in his trial testimony. Defense counsel raised objections at various points, several of which were sustained. In addition, the trial court voiced its own concerns, at one point telling the jury to disregard the prosecutor's annotations to the images of the trial exhibits. The court ultimately curtailed the PowerPoint presentation because of those annotations, stating that it was "not allowing any more . . . superimposed words."

Defense counsel objected. The Court of Appeals noted that a curative instruction was enough to cure this problem after the prosecutor was instructed to stop presenting the Powerpoint. "Defendant was convicted of burglary in the first degree, assault in the second degree and criminal possession of a weapon in the second degree. The jury acquitted him of robbery in the first, second and third degrees." The Court of Appeals holds that:

There is no inherent problem with the use of a PowerPoint presentation as a visual aid in connection with closing arguments. Indeed, it can be an effective tool. But, the long-standing rules governing the bounds of proper conduct in summation apply equally to a PowerPoint presentation. In other words, if it would be improper to make a particular statement, it would likewise be improper to display it (see People v Anderson, __ NY3d __ [decided [*4]today]). If counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence (see e.g. People v Santiago, 22 NY3d 740, 751 [2014]). Moreover, any type of blatant appeal to the jury's emotions or egregious proclamation of a defendant's guilt would plainly be unacceptable (see e.g. State v Walker, 182 Wash 2d 463, 341 P3d 976 [2015])....Notably, the actual trial exhibits remained pristine for the jury's examination. In any particular case, where there is a concern that it will not be clear to the jury that the annotated PowerPoint slides are not in evidence, or a substitute for the actual evidence, a specific jury instruction will serve to emphasize that such representations are merely argument by counsel.

The conviction stands. "The court's prompt corrective action cured any potential prejudice...The remarks at issue here were not "so egregious that counsel's failure to object render[ed] his overall representation constitutionally defective" People v Wragg, 26 NY3d 403, 411 [2015]." The case is People v. Williams (NY Ct. of Appeals, 2017)