"Argument is not required to be sterile or anemic; blunt and emphatic language is essential to effective advocacy in most cases. " (2)
CLEARLY, A PROSECUTOR MAY strike hard blows, as long as they are not foul ones. (3) While a prosecutor will be given "wide latitude" in making her closing arguments, (4) her comments must be limited to "properly admitted evidence and any reasonable inferences or conclusions that can be drawn from that evidence." (5) Moreover, a prosecutor "may not express his personal opinion on the merits of the case or the credibility of witnesses," including the defendant. (6)
To assist in conveying arguments and inferences to a trial jury during summation, a prosecutor is generally free to use visual aids to accompany an oral argument. This may include aids that display images of trial exhibits, excerpts of testimony, the court's charge and instructions to the jury, and even the prosecutors theme drawn from admissible evidence. One of the most effective tools to accomplish this goal is through the use of computer presentation software, such as Microsoft's PowerPoint.
However, as Uncle Ben Parker once famously told his young nephew Peter, "With great power comes great responsibility." (7) As conscientious and dedicated prosecutors, we are well aware of the current accusations made by adversaries and detractors: injustice occurs all too often in the criminal justice system simply because prosecutors are willing to quietly place their thumbs on the scale of justice in order to improperly influence the outcome.
Critics claim that prosecutors are intentionally trained to willingly conceal or destroy exculpatory evidence; that prosecuting attorneys blatantly discriminate and eliminate prospective fair jurors simply because of race, color or creed; that prosecutors deliberately coax witnesses into giving false or misleading testimony; that prosecutors knowingly and purposely rely on shoddy evidence gleaned from junk science to buttress weak cases; and that all prosecuting attorneys are driven not to seek justice, but to pile up convictions at any cost in order to win promotions, or to be elevated to higher office, or to secure high-paying jobs at white-shoe law firms.
Most recently, these same cynics tell of yet another horror story: a veritable Frankenstein's monster lurching down the corridors of the courthouse, a deadly combination of the prosecutor's heartless guile with shiny modern technology, and this fiend is now running amok in the courts.
Driven by prosecutorial misconduct and fueled with Microsoft's PowerPoint presentation software, this soul-less brute is just one more example of how prosecutors need to win at all costs. The existence of the creature was exposed in an article published by the Marshall Project with the eye-catching title, "PowerPoint Justice: When prosecutors slide around the law." Claiming that 10 cases had been reversed in the past two years because of the government's deliberate abuse of PowerPoint, the author of the article denounced the use of PowerPoint by prosecutors in various phases of trial as yet one more way for them to illicitly tip the scales of justice, and improperly obtain convictions. Deftly ignoring the advantages of mixing visual and oral advocacy (and its proven impact on modern jurors), the author of the article focused on a handful of cases where convictions were reversed for what appears to be blatant prosecutorial misconduct--which in all likelihood, would have been reversed whether the prosecuting attorney had used PowerPoint or not. Quite simply, the moral of the story from the cases cited in the article is, "if it's wrong to say the words, it's equally wrong to display the words."
Notwithstanding the current climate across the legal landscape, it is undeniable that when used properly during trial, PowerPoint is a potent technological device for all attorneys, including prosecutors. When combined with effective oral advocacy skills, PowerPoint can supplement a prosecutor's closing argument, helping to narrow issues for the jury, and at the same time, forcefully join the main theme and theory of a case with the admissible evidence. However, if used improperly, PowerPoint can quickly become the noose that prosecutors put around their own necks, either by displaying improper arguments or themes, showing the jury things that were not properly received in evidence, or oversimplifying the legal concepts relevant to the case. And because a prosecutors improper oral argument was accompanied by an equally improper visual display, many appellate courts are likely to reverse convictions because of the increased magnitude of the perceived error.
But do not despair! The focus of this article is not to dissuade aggressive, experienced prosecutors from being on the cutting edge of technological advocacy. Instead, this article is designed to encourage all prosecutors to continue to be skillful, competent attorneys, by using every available tool at their disposal to advocate for their victims, within permissible bounds. By doing so, we can assure that the guilty will be swiftly convicted and properly punished, that the wrongfully accused will be quickly exonerated, and the public's confidence in our criminal justice system is rightly restored.
THE BACKGROUND OF POWERPOINT
Originally designed for the Macintosh computer, the first version of PowerPoint was called Presenter, and was developed by Dennis Austin and Thomas Rudkin, who were working at a small tech firm called Forethought, Inc. In 1987, the nascent software was renamed to PowerPoint due to problems with trademarks, and was being developed as linear presentation software. By August 1987, Forethought was purchased by Microsoft for around $14 million, and eventually became Microsoft's Graphics Business Unit. PowerPoint was officially launched May 22,1990, the same day that Microsoft released Windows 3.0. By the end of 2012, various versions of PowerPoint claimed about a 95 percent share of the presentation software market, with installations on at least 1 billion computers. Among presentation software worldwide, the program is currently used at an estimated frequency of 350 times per second.
PowerPoint is an intuitive software program designed to create presentations for a multitude of uses, including school projects, lectures, business meetings, or as an incredibly efficient way to pass along information. The program has been part of the Microsoft Office package, which offers word processing, outlining, drawing, graphing, animation and presentation management tools, all of which are easy to learn and intuitive to use. When a presentation is created using PowerPoint, it is made up of a series of slides. The user can import text, photographs, audio and video clips, and other information on to slides, which are then displayed to the viewer.
People frequently lose sight of the fact that PowerPoint merely provides the technological platform for a presentation. The content of each slide, and the sequence of slides, are all created by the user of the software. Those who favor using PowerPoint as an efficient and effective method to deliver information have suggested that a good PowerPoint presentation must answer in the affirmative four basic questions: (1) Does it tell a story? (2) Is it presented in digestible chunks of information? (3) Does the presenter know enough to speak to the topic without the slides? (4) Are the slides written at a topical level that is appropriate for the audience? If a PowerPoint presentation meets these criteria, there is a greater likelihood that the audience will benefit from its use. (8)
But the detractors of PowerPoint claim that all too often, the person who has created the presentation has filled it with cluttered graphics, confusing information and mind-numbing text. As a result, the user is at fault, rather than the software itself. In an article published in the April 26, 2010, edition of The New York Times, Elisabeth Bumiller chronicled the United States Army's "war on PowerPoint." Some leading generals, including Gen. Stanley McChrystal, the then-chief of American and NATO forces in Afghanistan, believed that the Army's persistent reliance on complex PowerPoint presentations led to an oversimplification of complex issues, while at the same time complicated simple directives and orders. McChrystal, referring to the slide below, famously remarked that the United States would win the Afghan war only when they were able to make sense of this PowerPoint slide, which purportedly detailed the complexity of American military strategy, but looked more like a bowl of spaghetti.
In developing and marketing PowerPoint, Microsoft has given the world an extremely useful presentation software package, capable of displaying information in a thoughtful and meaningful manner. However, the software is only as good as the person creating the presentation, and as with any technological advance, is subjected to practical use, or creative abuse.
THE DEVIL'S DEVICE: ILL-ADVISED USES OF POWERPOINT AT TRIAL
An informal survey of cases reported in all 50 states found that 37 states (about 64 percent) currently have appellate decisions in criminal cases that mention the use of PowerPoint by the prosecutor at some phase of trial--almost always in conjunction with a defendant's claim of prosecutorial misconduct. (9) From a sampling of over 100 cases, it appears that prosecutors use PowerPoint most frequently during their closing arguments, followed closely by its use in displaying evidence during witness testimony. In several jurisdictions, PowerPoint has been used during opening statements and to a lesser degree, during voir dire and on cross-examination of defense witnesses. In fact, the appellate courts of New Jersey have commented favorably on a trial courts use of PowerPoint to assist in delivering their final instructions to the jury. (10)
Of the 37 states where the reported...