by Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

We strongly advocate that counsel must use a visual presentation to support his or her oral argument at trial (and anywhere they need to be persuasive). This most commonly happens during opening statements and closing arguments at trial and the dominant format for such presentations is PowerPoint – a very good tool. However, like cutting your own hair or doing your own dental work, we must again caution you that you must really know what you’re doing because your case may depend on it.

On January 22, 2015, the Supreme Court of the State of Washington published its opinion in State v. Walker, overturning the State Prosecutor’s conviction of an accused murderer because the attorney went too far with his demonstrative evidence in closing. A murderer has potentially been freed because, in the Court’s view, counsel was inflammatory in his presentation and “appealed to passion and prejudice” of the jury.

Certainly as zealous advocates we do want to appeal to the passion of jurors on some level. We need their emotions to be in sync with the law and evidence, but what might be too much so as to prejudice the proceedings? Let’s explore the Washington Supreme Court’s opinion to see.

What Did the Prosecutor Do?

I’ll preface these notes with the fact that based on the Court’s findings of facts, the evidence was pretty overwhelming against the defendant, and he appeared to be a cold-blooded killer. The prosecution proved its case.

During closing arguments the prosecutor used a PowerPoint presentation of approximately 250 slides – that’s a lot of slides. Over 100 of those 250 were titled “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER.” They also included a slide with the defendant’s face and the text “GUILTY BEYOND A REASONABLE DOUBT” superimposed thereover in bright red letters. As you see in the slides reproduced above, the prosecutor argued (visually at least) that the defendant was guilty because he spent the stolen money on toys, safes, and a lobster dinner.

The prosecutor showed slides composed of trial exhibits – photographs – with the prosecutions take on the significance. For example, one slide showed a table littered with stolen money – real evidence – captioned with “MONEY IS MORE IMPORTANT THAN HUMAN LIFE,” which was not a statement in evidence. Another showed a photograph of the murder victim in life, captioned with “DEFENDANT’S GREED AND CALLOUS DISREGARD FOR HUMAN LIFE.”

During the prosecution’s closing, defense counsel objected unsuccessfully to the prosecution’s discussion of premeditaiton and a slide analogizing it to stopping at a railroad crossing, but never objected to the PowerPoint slides mentioned above.

Why Did the Court Find It Wrong?

The Court indicated that “[t]he primary question in th[e] case [was] whether those [accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy] convictions must be reversed in light of the PowerPoint presentation the prosecuting attorney used during closing argument.”

The Court held that “prosecutorial misconduct violated Walker’s right to a fair trial” because of the prosecution’s PowerPoint presentation. Why?

The real reason is that a prosecutor represents the state and the judiciary and must be impartial so as to act only in the interest of justice. According to Washington, “advocacy has its limits, and a prosecutor has the duty to ‘subdue courtroom zeal,’ not add to it.”

The Court professed to have had “no difficulty” holding that the prosecutor’s PowerPoint presentation was “egregious misconduct.” Why?

The Court felt that the prosecutor had presented “altered versions of admitted evidence” and “derogatory depictions of the defendant.” [recall, this defendant is pretty much, absolutely a murderer – his also-guilty girlfriend testified to it]. The Court took offense to the inflammatory nature of the PowerPoint slides – the superimposing of text and captions that suggested the defendant “should be convicted because he is a callous and greedy person who spent the robbery proceeds on video games and lobster.” The Court indicated that the presentation “plainly juxtaposed photographs of the victim with photographs of [the defendant] and his family, some altered with racially inflammatory text.” Finally, the prosecution’s slides “repeatedly and emphatically expressed a personal opinion on [the defendant’s] guilt.”

The Court found all this a “clear effort[] to distract the jury from its proper function as a rational decision-maker.” It held that “[t]he voluminous number of slides depicting statements of the prosecutor’s believe as to defendant’s guilt . . . is presumptively prejudicial and may in fact be difficult to overcome, even with an instruction.”

Finally, the Court suggested that there is a “serious need to curb abuses of such visual presentations” and encouraged “trial court judges to intervene and to preview such slides before they are shown to a jury.”

How to Navigate the Minefield.

This all seem a bit crazy to me, but I do get it from the perspective of the State needing to exert control over itself as it’s represented in the judicial system. State prosecutors are held to a higher standard than other lawyers in the courtroom. I suspect that had the defense used a similar counter-point PowerPoint presentation in its own closing arguments, it would not have been misconduct or even close thereto. But, the State is supposed to be more even-handed and tempered.

I’m fairly certain that the prosecutor made his own PowerPoint presentation and had absolutely no guidance from anyone that knew how such a presentation should be made – this is fairly clear from the examples of slides above. First, regardless of how long the closing argument was, there is simply no reason that there should have been 250 slides. I cannot imagine what all these slides presented and how each one could be needed to tell the simple story of how very bad this bad guy was. So, the fact that there were 100 or so slides that expressed the prosecution’s flaming belief that the defendant was guilty of premeditated murder is, to say the least, excessive.

If I could get into my time machine and travel back in time to help this prosecutor, my advice would have been to tighten up the presentation as a whole, to use more well-crafted and less over-the-top graphics, and to make his hard-hitting, prosecutorial-belief slides just those at the very beginning and very end of the presentation (which would reduce the “inflammatory” slides from 100 to maybe 4 or 5). I can imagine prosecution counsel pounding on the lectern and shouting during closing arguments, too – my advice: don’t (the facts are on his side). I would advise counsel to have a tight and reasonable story, to develop well-composed slides that fit with this story and show the evidence, and to summarize the evidence only at the beginning and end with the thematic, “Defendant is Guilty – Defendant is a Callous Murderer – Defendant Put No Value A Real Man’s Life” slide. I suspect with this advice, the murder stays in prison and the prosecution is saved embarrassment.

In non-criminal cases and cases outside of Washington, I suspect this case and the sentiment of Washington’s Supreme Court are mostly irrelevant. It is our goal as litigators to zealously advocate for our clients and when we don’t work for the state, we probably have a lot more leeway to do so. It is imperative that we use strong and reasonable stories, themes, and well-crafted, supporting visuals to evoke sympathetic and empathetic emotions in jurors. As a professional litigation consultant, I help identify ways to do this that are not so heavy handed as Washington’s state attorneys’ tactics.

Other articles and resources related to problems with trial graphics, litigation graphics and demonstrative evidence from A2L Consulting:

• 21 Reasons a Litigator Is Your Best Litigation Graphics Consultant
• 5 Problems with Trial Graphics
• 24 Mistakes That Make For a DeMONSTERative Evidence Nightmare
• 10 Reasons The Litigation Graphics You DO NOT Use Are Important
• 5 Demonstrative Evidence Tricks and Cheats to Watch Out For
• 6 Trial Presentation Errors Lawyers Can Easily Avoid
• The 14 Most Preventable Trial Preparation Mistakes
• The 12 Worst PowerPoint Mistakes Litigators Make
• Trial Timelines and the Psychology of Demonstrative Evidence
• 12 Reasons Bullet Points Are Bad (in Trial Graphics or Anywhere)
• How Long Before Trial Should I Begin Preparing My Trial Graphics?
• Free Download: Storytelling for Litigators
• Free Watch: Using PowerPoint Litigation Graphics to Win Your Case