An appellate court in Washington reversed a murder conviction this week because a prosecutor committed misconduct in closing argument through improper use of a PowerPoint presentation. If there is one jurisdiction in which prosecutors should know that they must be careful in how they deploy PowerPoint, it is Washington state. Courts there have actively policed these presentations, recognizing the powerful effect that visual advocacy can have upon a jury. A glimpse into the most recent reversal and the wider context reveal that prosecutors seem to be missing the point. Reluctant as ever to restrain themselves—despite, or perhaps because of, their ample powers—prosecutors continue to push the envelope. Good courts, like the ones in Washington, push back.

In the murder prosecution of Encarnacion Salas, the State closed with a PowerPoint presentation that sought to undercut the defendant’s claim of self-defense. Relying in large part on a slide that contrasted an image and description of the defendant with one of the victim, the prosecution set up a trope based on what the appellate court described as “high school stereotypes.” The image of this slide in the opinion is small and a little blurry, but here it is:

As you can see, the victim, Mr. Lopez, is portrayed squatting in front of “three people dressed in cartoon costumes.”

The Washington courts have addressed PowerPoint misconduct in a number of previous cases, including: State v. Walker (reversing conviction); In re Glasmann (reversing conviction); State v. Hecht (reversing conviction); and State v. Fedoruk (reversing conviction on other grounds and also finding prosecutorial misconduct). The court in Salas’s case acknowledged that the problem with the prosecutor’s presentation was not as egregious as some of these other earlier cases in which prosecutors superimposed the word “GUILTY” on photos of the defendant or otherwise altered exhibits. Nevertheless, it drew upon the principles the courts have laid down, explaining that “the broader proposition is that slide shows may not be used to inflame passion and prejudice.” It then described the problem with the first slide:

“PowerPoint slides should not be used to communicate to the jury a covert message that would be improper if spoken aloud. The juxtaposition of images and captions in the first slide communicates what the prosecutor could not, and did not, argue aloud: Salas was by nature an aggressive and intimidating person, and therefore had no reason to fear Lopez, who by nature was childlike and submissive.”

Even though the relative physical size of the defendant and victim was legally relevant because Mr. Salas had claimed self-defense, the court found that these photos do not actually compare the sizes of the two individuals because Mr. Lopez is crouching down. Instead, this was a naked attempt to use character evidence and evoke stereotypes that reinforce the prosecution’s version of events. The court concluded that the State’s presentation was prejudicial, and granted Mr. Salas a new trial.

Ken Armstrong at The Marshall Project has provided excellent coverage of the growing body of cases evaluating prosecutorial misconduct committed through electronic presentations. His most extensive piece, here, notes how active the Washington state courts have been in this area. (This article contains several images from slideshow presentations in different cases.) He also published a follow up when the Washington Supreme Court decided the Walker case out of misconduct-hotbed Pierce County in 2015. Another expert on prosecutorial misconduct, Bennett Gershman, has also written on the subject. And, we have touched upon the matter in previous posts as well.

Prosecutors need to spend less time tweaking images, toggling with font color options, and blowing up the size of words like “GUILTY” and more time looking at the case law. There appear to be several categories of cases in which PowerPoint can land a prosecutor in hot water. Generally, prosecutors must avoid altering exhibits, incorporating photographs or other items that were not presented or admitted at trial, and using words and phrases that convey the State’s opinions at the expense of the defendant’s presumption of innocence. (As a service to those prosecutors reading this with an interest in following the rules, this helpful entry in the American Law Reports provides useful guidance: 28 A.L.R.7th Art. 3). While a thoughtful use of PowerPoint can fall within the bounds of effective advocacy, the preparation demands an ounce of care, if not a bit more.

One major concern may be that prosecutors are receiving bad guidance from their own leaders. Ken Armstrong’s article highlights the work of the NDAA:

In 2003, the training arm of the National District Attorneys Association—“America’s School for Prosecutors,” is how it bills itself—published a 290-page book that advises prosecutors on how to use visual aids. . . . Unsubtle visual jokes figure prominently in the lessons. One chart displays evidence on a loaf of bread: “HOWEVER YOU SLICE IT DEFENDANT IS GUILTY.” Another, which summarizes the prosecution’s evidence on stacked bricks, says: “THE WRITING IS ON THE WALL.” Spelling gimmicks—“memorable for the jurors’”—work especially well with slide shows . . . .”

Although we do not know whether the NDAA has updated this book in light of the findings of misconduct described above, we know the organization disavows science, objects to the term ‘prosecutorial misconduct,’ and consistently challenges efforts to hold prosecutors responsible for constitutional violations, so there are reasons to be concerned. Until the NDAA and the prosecutors it represents begin to see the value in protecting individual constitutional rights, we can anticipate more decisions like the one in State v. Salas.

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