Complex Litigation

PowerPoints and Other Persuasion Tools

By Michael Hoenig - New York Law Journal - April 10, 2017

Joel Stashenko's informative article in the April 4 Law Journal, "PowerPoints at Trials Must Be 'Within the 4 Corners of the Evidence'" calls attention to two New York Court of Appeals decisions issued on the same day. In each case, a convicted criminal defendant argued on appeal that the prosecutor's use, during summation, of PowerPoint slides depicting trial exhibits but upon which were superimposed text, or comments, circles or other matter, was prejudicial. The cases are People v. Williams, 2017 N.Y. LEXIS 766 (April 4, 2017) and People v. Anderson, 2017 N.Y. LEXIS 769 (April 4, 2017). In each case, the state's highest court affirmed the conviction. However, the court also supplied some much-needed guidance on what permissible boundaries exist when using PowerPoints of trial exhibit images during summation that are not in their unaltered, pristine form.

Although the Williams and Anderson decisions involved criminal cases, the lessons to be learned seem applicable to a wide swathe of civil trials and, particularly, to litigation of complex cases where lawyers seek to persuade jurors about complicated subject matter by using not only PowerPoints, but also powerfully demonstrative evidence including animations, computer simulations and other so-called "pedagogicals." The boundary lines drawn by the Court of Appeals in Williams and Anderson are broad enough so they don't stifle or handcuff lawyer creativity but they are sufficiently admonitory to put trial counsel and judges on notice that prejudice must be avoided and, if unfairness seeps into the case, it must be cured promptly and effectively.

'Williams'

In Williams, the convicted defendant, along with others, broke into the victim's apartment, shot him, cut him with a knife and poured bleach over his head. During summation, the prosecutor displayed a PowerPoint presentation containing slides of images of the trial exhibits. Some were annotated through the PowerPoint program with text, circles or arrows. Slides showing still photos from a surveillance video were annotated with captions. Defense counsel objected and the trial court curtailed the PowerPoint presentation stating it was not allowing any more "superimposed words." A motion for a mistrial was denied. Chief Judge Janet DiFiore, writing for the court, concluded that the PowerPoint presentation did not deprive the defendant of a fair trial.

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." There is "no inherent problem" with the use of a PowerPoint presentation as a visual and in connection with closing arguments. Indeed, "it can be an effective tool." But, 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." Williams, 2017 N.Y. LEXIS 766 at *6 (citing the Anderson decision). Thus, if counsel is going to "superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence." And, any type of "blatant appeal to the jury's emotions" or egregious proclamation of a defendant's guilt would plainly be unacceptable. Further, the trial court has to instruct the jury that the attorneys' arguments were not evidence. Thus, "where there is a concern that it will not be clear to the jury that the annotated PowerPoint slides are not in evidence, a specific jury instruction will serve to emphasize that such representations are merely argument by counsel."

PowerPoints Permitted

In People v. Anderson, Judge Sheila Abdus-Salaam authored the opinion of the court. Judge Jenny Rivera dissented. The convicted defendant shot the victim who was dating defendant's ex-girlfriend. The court observed that PowerPoint slides depicting an already admitted photograph with captions "accurately tracking prior testimony" might reasonably be regarded as "relevant and fair commentary on the evidence," and not simply an appeal to the jury's emotions. "At bottom," said the court, "a visual demonstration during summation is evaluated in the same manner as an oral statement." If an attorney can point to an exhibit in the courtroom and verbally make an argument, that exhibit and argument "may also be displayed to the jury, so long as there is a clear delineation between argument and evidence, either on the face of the visual demonstration, in counsel's argument, or in the court's admonitions." The court rejected defendant's position that PowerPoints must only show exhibits in unaltered, pristine form and without any written comment or argument superimposed on the slides. Anderson, 2017 N.Y. LEXIS 769 at *3.

PowerPoint slides may properly be used in summation where the added captions or markings are "consistent with the trial evidence and the fair inferences to be drawn from that evidence." If the superimposed text is clearly not part of the trial exhibits, and "cannot confuse the jury about what is an exhibit and what is argument or commentary, the added text is not objectionable." The court clarified that the slides, in contrast to the exhibits, are not evidence. Here, the slides were not supplied to the jury during deliberations. Further, the trial judge properly instructed the jury that what lawyers say during summations is not evidence; the jury must consider only the evidence. Judge Jenny Rivera's dissenting opinion, however, urged that the PowerPoint slides, "a powerful visual medium," distracted the jury from the "unaltered trial evidence and the relevant facts."

The Williams and Anderson decisions track a path that does not exclude tactics and media of persuasion by counsel so long as they are fair, reasonable and consistent with the evidence. In this manner—with broad but explicit guidelines for trial counsel to limit themselves to "relevant matters within the four corners of the evidence"—the court has not unduly handcuffed litigators or precluded technological progress that might enhance the trial experience and the search for the truth. On the other hand, there is much more complexity regarding trial use of other advocative devices well beyond annotated PowerPoints.

In my column years ago, "Admissibility of Computer-Generated Animations and Simulations," (NYLJ, Sept. 10, 2012), I discussed a number of popular demonstrative techniques used by both sides to convince jurors one way or the other. That article considered whether powerful tactics such as the use of computer-generated animations, simulations, computer models and others, had so altered the playing field as to require better-focused attorney and court vigilance. It is clear that advances in computer-generated graphics now portray imagery so sophisticated, so authoritative, so evocative that the pictorial details can dwarf the testimonial foundation that justifies its admissibility in the first place. Could jurors be so smitten by the informative power of the pedagogical medium that the graphics could be overvalued? Consider, for example, the special effects presented in many successful movies. Without the visual impact of such well-staged imagery, the dialogue itself often would be flat and ineffective. The viewer's emotions are rabidly excited by the visual cues and it is the imagery punctuating the dialogue, in large part, that moves the viewer.

Conclusion

The Williams and Anderson decisions regarding annotated PowerPoint slides used during summations are quite helpful in establishing firm but flexible rules of use even in civil trials. For litigators, however, there are numerous other forms of demonstrative, pedagogical and digital evidence and advocative techniques. These inundate the trial arena. In complex litigation, both camps frequently come armed to the teeth with "techie" arrows in their quivers. The resultant admissibility challenges require counsel's vigilance.

For the reader's convenience, in addition to my prior column, I have identified in the endnote some articles and sources that might be helpful.1 Also, Judge Jenny Rivera's dissent in Anderson lists a number of articles on persuasion by visual evidence and advocacy by use of images.

Endnote:

1. G.J. Morse, "Techno-Jury Techniques in Verbal and Visual Persuasion," 54 N.Y.L.Sch. L. Rev. 241 (2009/2010); H.L. Nations & C.L. Nations, "The Rules of Digital Evidence," Course No. SN009 (July 2007) ALI-ABA Course of Study Materials); S.H. Solomon & S. Flamm, "Admissibility of Digital Exhibits in Litigation," Course No. SM057 (Oct. 2006) (ALI-ABA Course of Study Materials.

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