Chapter 10

• Jurisdiction: United States

Chapter 10 Ethical and Legal Issues

"At bottom, 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."

People v. Anderson, 74 N.E.3d 639, 641 (N.Y. 2017)

A. The Benefits and Risks of Technology

This chapter covers the improper use of visuals during trial, such as displaying a visual in closing argument that either expresses a personal opinion, comments on a defendant's right to remain silent, or misstates the law. We also examine preservation and discovery issues as they relate to conventional and electronic visuals.

Lawyers are aware of the requirement that they must provide competent representation. But what does that mean with regard to technology? Competency means counsel is knowledgeable concerning the benefits and risks of technology. Model Rule of Professional Conduct 1.1 Competence provides:

A lawyer shall provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.¹

Comment 8 to Rule 1.1 on Competence specifically addresses the need for lawyers to keep current about the benefits and risks of technology as follows:

To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (emphasis added)

This professional responsibility mandate that a lawyer be knowledgeable and skilled regarding the benefits and risks of relevant technology is an incentive to pursue continuing legal education on the subject and to stay informed about pertinent technology.

B. Challenges: It's the Content That Counts

When analyzing any challenge to a trial visual, it is important to keep in mind that it is the content of the visual, rather than the medium, that is important. For example, in State v. Rivera,² the defendant appealed his conviction claiming that the trial court erred in allowing the prosecutor to show a PowerPoint slide declaring the defendant's guilt because it is improper for a prosecutor to express a personal opinion regarding the defendant's guilt. The Appellate Division of the Superior Court of New Jersey decided that, based upon the PowerPoint slide and other prosecutorial conduct, the conviction should be overturned. The court held:

Our courts have not yet addressed the use of PowerPoint presentations during opening statements or summations in criminal trials in a published opinion. Other courts have, however, considered the matter.
The Nevada Supreme Court has concluded that a PowerPoint, "as an advocate's tool, is not inherently good or bad" and that "its propriety depends on content and application." Watters v. State,___ Nev. ___, 313 P.3d 243, 247 (2013). The Court further determined that a PowerPoint accompanying an opening is permissible if "the content is consistent with the scope and purpose of opening statements and does not put inadmissible evidence or improper argument before the jury." . . . .
We fully agree that the content, not the medium, is important. That view is consistent with the approach our Supreme Court has taken with respect to other technological advances used in connection with trial court proceedings.³

In and of themselves, visuals are just another means of communication. If you can say it, you should be able to show it. Only the content of the communication should be at issue. In Arizona v. Sucharew,⁴ the Arizona Court of Appeals (Div. 1) found no error where the PowerPoint shown during opening statement did no more than show the exhibits that would later be admitted in the course of the trial and tracked what the prosecutor said in opening statement. The court stated:

Defendant argues that the trial court abused its discretion in permitting the prosecutor to use the "PowerPoint" presentation in his opening statement because the presentation involved a "computer generated exhibit." Although a computer was used in the presentation, the actual presentation did not include any computer simulation or other similar evidence; rather, it was essentially a slide show of photographic exhibits. The photographs included in the presentation were the same ones disclosed to defendant during pretrial discovery and later admitted into evidence at trial. Moreover, even though the photographs included superimposed descriptive words and labels, the words and labels simply tracked the subject matter of the prosecutor's opening statement to the jury, and defendant made no objection to any of the content or substance of the actual opening statement. We conclude, therefore, that there was no abuse of discretion by the trial court in permitting the State's use of the "PowerPoint" presentation. See People v. Green, 47 Cal. 2d 209, 302 P.2d 307, 312 (1956) (holding trial court had discretion to permit use of motion picture and photographs later admitted into evidence during opening statement), disapproved on other grounds in People v. Morse, 60 Cal. 2d 631, 36 Cal. Rptr. 201, 388 P.2d 33 (1964).⁵

The antithetical proposition to "if you can say it, you can show it" is "if you can't say it, you can't show it." In United States v. Burns,⁶ the trial court permitted the prosecution to present a PowerPoint during opening statement. The slideshow contained images of items that did not become evidence, specifically a fistful of cash and a large quantity of crack cocaine. The United States Court of Appeals for the Sixth Circuit reviewed the PowerPoint presentation and held that those photographs might have confused the jury and should not have been shown, but the court presumed that the trial court's instructions against viewing the opening statements as evidence cured any harm that might have been caused. The appeals court went on to hold that the "potential prejudicial effect of the slides was not so great as to overwhelm the jury's ability to follow the court's instructions not to consider the opening statements as evidence."⁷

The prior examples involve situations in which counsel addressed the jury. The principle that "it is the content that counts, not the medium" applies also to visuals displayed during the taking of testimony. In State v. Vance,⁸ the defendant argued on appeal that trial court abused its discretion by allowing a witness to testify with the aid of a PowerPoint presentation describing the manufacture of methamphetamine. The court ruled that the PowerPoint presentation was demonstrative evidence and that the trial court properly allowed it to be shown as follows:

The PowerPoint presentation was used as context for Gibson's subsequent testimony regarding photographs of the actual items found in Defendant's residence. It would have been confusing to the jury if the depiction of the manufacturing process cut off before the final steps, which would have included the use of anhydrous ammonia. We see no abuse of discretion in the district court's permitting the entire manufacturing process to be described as context for the items found.⁹

The following sections cover discovery issues and specific challenges to the use of visuals on legal and/or ethical grounds. In each instance, it is important to note that the focus of trial and appellate court decisions have concentrated on the content of the visual.

C. Unadmitted Evidence

If the content of a visual is inadmissible, displaying it to the jury ordinarily will result in a mistrial or reversal unless the appellate court finds that the error was harmless and was cured by an instruction as it did in United States. v. Burns.¹⁰ In In re Pers. Restraint of Glasmann,¹¹ the Washington Supreme Court reversed a conviction and criticized the prosecutor's use of visuals in a PowerPoint presentation, stating:

Here, the prosecutor intentionally presented the jury with copies of Glas-mann's booking photograph altered by the addition of phrases calculated to influence the jury's assessment of Glasmann's guilt and veracity. In the photograph, Glasmann is unkempt and bloody, a condition likely to have resulted in even greater impact because of captions that challenged the jury to question the truthfulness of his testimony. While the State argues that it merely combined the booking photograph, admitted as exhibit 89, with the court's instructions and argument of the law and facts, the prosecutor's conduct went well beyond this. Indeed, here the prosecutor's modification of photographs by adding captions was the equivalent of unadmitted evidence. There certainly was no photograph in evidence that asked "DO YOU BELIEVE HIM?" See State's Resp. to PRP, App. G at 5. There was nothing that said, "WHY SHOULD YOU BELIEVE ANYTHING HE SAYS ABOUT THE ASSAULT?" . . . And there were no sequence of photographs in evidence with "GUILTY" on the face or "GUILTY, GUILTY, GUILTY." See id. Yet this "evidence" was made a part of the trial by the prosecutor.

The concurring opinion in Glasmann provides this advice regarding litigation technology:

Certainly, lawyers may add and should use technology to advance advocacy and judges should permit and even encourage new techniques. But we must all remember the only purpose of visual aids of any kind is to enhance and assist the jury's understanding of the evidence. Technology should never be permitted to dazzle, confuse, or obfuscate the truth. The jury's deliberations must be based solely upon the evidence admitted and the court's instructions, not upon whose lawyer does the best job of manipulating, altering,

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