Visuals are essential in today’s trials. Many jurors are visual learners; many have reduced attention spans from years of watching television or online video; and many jurors ‘expect’ a show as part of a modern trial.
And Powerpoint and other visuals can be potent evidence, crystalizing complex legal concepts and hitting powerful emotional chords. This connects with what some call “right brain thinking,” where the aptitudes at issue are “design, story, symphony, empathy, play and meaning.” See Daniel Pink, A WHOLE NEW MIND (2005).
But Powerpoint mis-use, or judicial perception of Powerpoint mis-use, is now an issue, particularly in criminal cases. This was discussed at length in a 2014 Marshall Project Report titled “PowerPoint Justice – When prosecutors slide around the law.” https://www.themarshallproject.org/2014/12/23/powerpoint-justice
The concern is not limited to glaring examples, such as the one depicted here:
The problem? It was the use of a booking photo – displaying the defendant in prison garb. What the Court wrote in that case was as follows:
The only rational reason the state could have for presenting this altered photograph of Walter in his recognizable orange prison jumpsuit was to influence the jury’s determination of his guilt. The state argues that it did nothing improper because the photograph was previously admitted in its unaltered state…
While Walter was not forced to appear physically in prison attire during his trial, the altered photograph the state presented during its closing argument compelled the same de facto influence upon the jury. “[V]isual arguments manipulate audiences by harnessing rapid unconscious or emotional reasoning processes and by exploiting the fact that we do not generally question the rapid conclusions we reach based on visually presented information.” Lucille A. Jewel, Through a Glass Darkly: Using Brain and Visual Rhetoric to Gain A Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 289 (2010).
State v. Walter, 479 S.W.3d 118, 127 (Mo. 2016).
The most recent reversal for powerpoint mis-use came in January, 2018. The charge was murder, the defense was that of self-defense. The following graphic was used:
Why was this held to be problematic? According to the appellate court, it was a thinly-veiled character attack:
The photograph of Lopez conveys that he was happy, fun-loving, and even childlike. He appears small as he poses with a group of cartoon characters. The photograph of Salas, on the other hand, shows only the unappealing image of his face…
It was not improper for the prosecutor to remind the jury that Salas was taller than Lopez. Relative size, strength, and age of the individuals involved is relevant in a self-defense case. But if the purpose of the slide was to compare them in size, the photographs are not helpful. The photograph of Salas shows only his head. And the caption does not mention the fact that the two men were roughly equivalent in weight.
The captions reinforce the visual contrast. They evoke high school stereotypes. Lopez was a musician, whereas Salas played football and was once in a fight club. Which type of person was more likely to initiate a fight? Salas was an outdoorsman, while Lopez was a customer service representative. Which type of person was more likely to use a knife?
…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. The prosecutor in effect used the slide to prove the character of the two men “in order to show action in conformity therewith,” improper under ER 404(b).
State v. Salas, 2018 Wash. App. LEXIS 24, *14-16.
The Salas Court made one more point. “A rule of thumb for using PowerPoint is ‘If you can’t say it, don’t display it.’ PowerPoint slides should not be used to communicate to the jury a covert message that would be improper if spoken aloud.”