Prosecutorial Misconduct Using Courtroom Technology

Prosecutors increasingly use technology in the courtroom to win convictions. One of the most persuasive, and insidious techniques to get juries to convict is to use a Power Point presentation during the closing argument to visually depict inflammatory images of the crime emblazoned with the prosecutor's equally inflammatory captions. As the prosecutor expects, the jury will react to these images with grief, anger, and vengeance. As with the use of gruesome photographs, prosecutors are able to generate emotionally-driven responses, sometimes without the juror even being aware this is happening, and thereby taint the decision-making process. Although there's nothing inherently wrong with using technology in the courtroom, more and more prosecutors cross the line by exploiting the power of technology to skew the way juries analyze the evidence, and thereby prejudice a defendant's right to a fair trial.

Examples abound. One prosecutor in a murder trial arising out of a gang shootout during summation used a 67-slide Power Point presentation in color which included images of the victim's bloody body emblazoned in bright red lettering with the words MURDER, TERROR, and FEAR; referred to the victims as HELPLESS; and prominently displayed his pronouncement: THE DEFENDANT IS GUILTY OF ALL THE CHARGES AGAINST HIM. A prosecutor superimposed the words DEFENDANT GUILTY OF PREMEDITATED MURDER over an image of the victim's bloody body, and the words GUILTY BEYOND A REASONABLE DOUBT superimposed over the defendant's booking photo. Another prosecutor displayed slides with images of a gun and red circles that were not in evidence and resembled blood. Another prosecutor used slides showing the defendant's booking photograph with the caption DO YOU BELIEVE HIM? another slide captioned WHY SHOULD YOU BELIEVE ANYTHING HE SAYS? and another slide showing the defendant's mug shot with the word GUILTY superimposed diagonally in red letters in opposite directions forming an X shape across the defendant's face. The prosecutor in each of these instances was found by the court to have committed misconduct.

Apart from making their closing arguments a media event and skewing a jury's view of the evidence with inflammatory visual images, some prosecutors also use technology to mislead juries with visual trickery. One especially insidious ploy is to distort a jury's understanding of the concept of reasonable doubt. For example, prosecutors have used a Power Point program with a slide show containing several pieces in a puzzle, which they show to the jury on the screen sequentially, but omitting a few pieces. The image from the pieces that are shown is immediately recognizable - for example, a picture of the Statue of Liberty. The slide show finishes when the last piece is in place, leaving a few pieces of the puzzle missing - one piece in the center which includes a portion of the statue's face, and one piece in the upper corner of the image which shows a portion of the torch. As he is presenting the slide show the prosecutor tells the jury that they know what the picture is, beyond a reasonable doubt, without having to look at all the pieces of the puzzle. In this way, by using an immediately recognizable iconic image, the prosecutor suggests to the jury that the concept of reasonable doubt is really not that demanding, and leaves the jury with the impression that the standard of proof beyond a reasonable doubt involves a similarly easy and quantitative measure. This deviously clever demonstration dilutes the standard of proof that is necessary to convict. And the prosecutor by this misleading gambit commits misconduct.

It doesn't take much insight to appreciate how a misleading and prejudicial image can sway a jury in ways that words cannot. Images such as the ones described above become especially powerful during the closing argument, when jurors are most alert to the prosecutor's arguments and most vulnerable to emotionally-generated images. A prosecutor by using inflammatory images is able to inflict prejudice on a defendant in ways that a prosecutor's rhetoric could not do. Thus, it is legally and ethically impermissible for a prosecutor to make inflammatory arguments, misstate the evidence, and express his personal opinions about the credibility of witnesses and the guilt of the defendant. Thus, a prosecutor would be committing misconduct if he shouted to the jury THE DEFENDANT IS GUILTY, GUILTY, GUILTY, or THE VICTIM IS TELLING THE TRUTH, but that is exactly what the prosecutor does when he gives his Power Point presentation to the jury. It is common knowledge that visual arguments have the power to manipulate audiences by exploiting conscious and unconscious emotional or reasoning processes much more than words can do, and the impact of this on jury decision-making is well-recognized. Moreover, and most critically, visual manipulations of the sort used by prosecutors in the above cases is inconsistent with the fundamental principle of a fair criminal justice system which embodies reasoned analysis and careful deliberation.

This is not to say that prosecutors, and all lawyers for that matter, should not use technology and visual aids to promote effective advocacy. Courts should be willing to permit advocacy techniques that assist the jury's understanding of the evidence and encourages a jury to engage in fair and efficient fact-finding. However, technology is misused when it is done to dazzle, mislead, confuse, and impede the search for truth. A jury's deliberations must be based exclusively on the evidence and the law, and not on the ability of a prosecutor - or any lawyer - by an emotionally persuasive kaleidoscopic experience to manipulate and distort the evidence, and thereby undermine the integrity of the trial.