Wednesday, January 21, 2015

An update on improper arguments, and use of powerpoint, by prosecutors

Long time readers of this blog will remember the many cases I have reported over the years where courts had to decided whether to reverse a conviction because of improper arguments by prosecutors (usually during closing arguments).  Many of these cases involved prosecutors making references to facts not in evidence, expressing their personal opinions or using inflammatory rhetoric.  Some cases involved prosecutors being more creative, like the case where a prosecutor performed magic tricks for the jury and the one where a prosecutor used a big jigsaw puzzle with one piece missing to suggest to the jury that they could "see the picture" (or "know the truth") even though they did not have all the pieces of the puzzle. Sometimes courts have reversed the convictions and sometimes they have criticized the conduct but not reversed the conviction.

The Legal Profession blog has a note on the most recent example here.  It involves a case where the conviction (for the murder of four police officers) was reversed because the prosecutor misstated the law to the jury five times during closing argument, and then again during the rebuttal argument.  Although the court easily finds that the prosecutor's statements were improper, and at one point states that "the misconduct by the State is particularly egregious",  it does not attempt to determine whether they were the result of negligence, incompetence or intent and does not make a recommendation for sanctions.  Once again, as I have criticized time and time again, the court does nothing to deter the type "egregious" conduct that it complains about. 

Interestingly, there was another aspect of the prosecutor's presentation to the jury that the court commented on.  The prosecutor used a "slide show" (presumably something like PowerPoint) in which it showed the jury the improper statements. 

This is interesting because the use of PowerPoint has attracted some attention lately. The Marshall Project has an interesting post on this new trend.  According to the article,
At least 10 times in the last two years, US courts have reversed a criminal conviction because prosecutors violated the rules of fair argument with PowerPoint. In even more cases, an appellate court has taken note of such misconduct while upholding the conviction anyway or while reversing on other grounds ... . Legal watchdogs have long asserted that prosecutors have plenty of ways to quietly put their thumb on the scales of justice ... Now they can add another category: prosecution by PowerPoint. “It’s the classic ‘A picture is worth a thousand words,’” said Eric Broman, a Seattle attorney who focuses on criminal appeals. “Until the courts say where the boundaries are, prosecutors will continue to test the boundaries.”
The article explains how PowerPoint has been used in many of these cases and includes photos of the more problematic slides.  You can read the full article here.

No comments:

Post a Comment