Walker’s counsel failed to object to the slides, and the jury convicted him on all charges. Walker appealed on the grounds of prosecutorial misconduct, improper jury instructions, and ineffective assistance of counsel. The Washington Court of Appeals affirmed the convictions.
Prosecutor Crossed the Line
The Washington Supreme Court unanimously reversed the conviction and remanded the case for a new trial due to prosecutorial misconduct. Generally, a defendant “has the burden of showing the prosecutor’s conduct was both improper and prejudicial in the context of the entire trial,” and must also show that an instruction would not have cured the prejudice if raised for the first time on appeal, according to the court.
Multimedia resources and visual aids can and should be used in closing arguments to help the jury understand the evidence and issues, but the slides in this case “served no legitimate purpose” and “obfuscated the complicated facts” in this case, the majority opined. The prosecution’s addition of inflammatory captions and text to admitted exhibits constituted the presentation of altered evidence to the jury, according to the majority. The majority also held that the additional text violated Oregon Rule of Professional Conduct 3.4(e), which prohibits expression of personal opinion on the defendant’s guilt, and found the sheer volume of improper slides presumptively prejudicial. The court suggested trial judges preview attorneys’ PowerPoint presentations to the jury to avoid future retrial.
Race Improperly Highlighted
The concurring justices—noting that many of the PowerPoint slides presented “actual quotations from or portions of photos from properly admitted evidence, or both,” and were thus “fair game during closing”—found the use of altered evidence to be less pervasive than the majority. The concurrence focused instead on the prosecutor’s improper emphasis on race, observing that even if admitted into evidence, presenting exhibits and testimony in a fashion unfairly emphasizing a defendant’s race is impermissible.
The concurring judges reasoned that an admitted statement containing the “n-word,” when combined with an admitted photo depicting the defendant eating a lobster dinner with his family, essentially “altered” the photo because the “n-word” stressed defendant’s race. Similarly, the concurrence found that the defendant’s booking photo was “doubly altered” when captioned with the defendant’s statement, “We are going to beat this.” The prosecutor excised the booking photo from a photo lineup that was admitted into evidence, and superimposed on it the defendant’s quote. The concurrence noted that standing alone and unaltered, presentation of these two items of evidence at closing would have been proper. But when presented together, the prosecutor impermissibly emphasized the defendant’s race, where racial motive was either alleged or relevant.
Proper versus Improper Slides
ABA Section of Litigation leaders agree that reversal was proper. “There was no way to separate the outcome from the conduct of the prosecutor,” says Dawn Du Verney, Philadelphia, PA, cochair of the Section of Litigation’s Criminal Litigation Committee. “The prosecutor not only presented the evidence, but usurped the jury’s role as trier of fact by telling the jurors how to think about the evidence and what to conclude as well,” she explains.
“Demonstrative pieces used during closings are supposed to summarize facts and evidence, but the evidence was peppered with opinion and argument. The concern is that the jury would be confused as to what is actually evidence versus what is actually the prosecutor’s argument,” states D. Grayson Yeargin, Washington, D.C., cochair of the Section’s Civil Rights Litigation Committee. The prosecution may have also overreached into the jury’s role by captioning photos with witness testimony, according to Yeargin. “It’s for the jury to connect the dots between the pieces of evidence, and by presenting evidence in that way, the jury could be misled into thinking those two things must be linked in the evidence,” observes Yeargin.
The Walker court did not draw a bright line governing the content of PowerPoint slides, but Section leaders agree that a key criterion is whether the visual aid helps or confuses the jurors. “The demarcation line is where you cross the line of advocacy into confusion. That’s when the courts get involved and it should be stopped,” opines Yeargin.
Trial attorneys are advised to skip the theatrics, to be mindful to present only admitted evidence, and to present admitted evidence in an evenhanded way. “Anything that is on the edge, you may just want to artfully allude to it,” recommends Du Verney.
Renee Choy Ohlendorf is an associate editor for Litigation News.