Published in The Suffolk Lawyer, May 2017

By Patrick McCormick, Esq.
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PowerPoint presentations have become a staple of law school classes, business presentations, and educational seminars – so it’s no surprise that they have also made their way into the courtroom.  But at what point does a PowerPoint cross the line from helpful to harmful?  The Court of Appeals recently addressed this question in People v. Williams, 2017 WL 1216063, 2017 N.Y. Slip Op. 02588, a criminal case that is still informative in commercial and other civil matters.

People v. Williams stems from a violent encounter in 2009 in which the defendant allegedly broke into the victim’s apartment, shot him, cut him with a knife, and poured bleach over his head.  Somehow, the victim survived, and testified at trial that he had been on the phone with his brother when the defendant and others broke into the apartment.  The victim’s brother had been driving near the victim’s block around the time of the attack.

At trial, the prosecutor displayed still photos of surveillance footage purportedly showing an SUV driving down the block shortly before the crime occurred.  The victim’s brother testified that the SUV in the images “looked like” the vehicle he had been driving that night.  He also testified that when driving down the block, he saw a few people on the sidewalk wearing hooded clothing.  While he admitted that he did not see the defendant’s face because it was dark outside and snowing, the brother testified that he thought one of these individuals was the defendant, describing him as “the only short person I know.”

Before closing arguments, the trial court advised the jury that they alone were the finders of fact, that the attorneys’ summations were “simply argument[s] submitted for your consideration” and not evidence, and that the jury’s recollection of the evidence presented controlled, no matter what the attorneys said in summation.

During his summation, the prosecutor showed PowerPoint slides containing images of the trial exhibits, including still photos of the surveillance video about which the victim’s brother had testified.  The slides were annotated with captions such as “[the victim’s brother’s] truck” and “[the victim’s brother] sees the defendant,” despite the fact that the brother had been unable to definitively identify the truck or the defendant.  Defense counsel raised objections throughout, some of which were sustained.  The trial court even expressed its own concern, advising the jury at one point to disregard the annotations on the slides and ultimately stopping the PowerPoint presentation in light of the “superimposed words.”  The defendant was ultimately convicted of burglary in the first degree, assault in the second degree, and criminal possession of a weapon in the second degree (he was acquitted of robbery in the first, second, and third degrees).

Defense counsel moved for a mistrial, and while the trial court said it was “sympathetic” to these arguments, it denied the motion.  The Second Department affirmed, finding that neither the PowerPoint presentation nor the prosecutor’s summation had deprived the defendant of a fair trial (123 A.D.3d 1152).

Upholding the order of the Appellate Division, Chief Judge DiFiore wrote for the Court of Appeals that “it is well-settled that attorneys are entitled to broad latitude in commenting on pertinent matters of fact in summation, so long as they limit themselves to relevant matters within the four corners of the evidence” (see People v. Ashwal, 39 N.Y.2d 105, 109 (1976)).  As to the PowerPoint, the Court found “no inherent problem” with its use, even noting “it can be an effective tool,” but cautioned that “the long-standing rules governing the bounds of proper conduct in summation apply equally to a PowerPoint presentation.  In other words, if it would be improper to make a particular statement, it would likewise be improper to display it” on a PowerPoint slide.  Therefore, if “counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence.”  See People v. Santiago, 22 N.Y.3d 740, 751 (2014).

At trial, while the slides may have misrepresented the trial evidence, “the trial court was very attuned to the annotated slides and, in the exercise of its discretion, ultimately stopped the slideshow and instructed the jury to disregard the slides.”  The Court of Appeals also discussed the numerous occasions that the trial court reminded the jury that the prosecutor’s arguments were not evidence, of which the jury was the sole judge.  Moreover, the actual exhibits “remained pristine for the jury’s examination.”  The Court of Appeals therefore found that the trial court’s “prompt corrective action cured any potential prejudice.”

Incorporating a PowerPoint presentation into your summation at trial may be an effective way to draw the jury’s attention to the evidence that best supports your case.  But this case teaches that it’s the evidence that’s key.  So keep the focus “within the four corners of the evidence,” and click away.

Patrick McCormick, Esq. is a partner at Campolo, Middleton & McCormick, LLP, a premier law firm in Ronkonkoma and Bridgehampton, where he chairs the Litigation & Appeals practice group.  A member of the board of directors of the Suffolk County Bar Association, Patrick is also the incoming dean of the Suffolk Academy of Law.  Contact him at pmccormick@cmmllp.com.