Not A Shining Moment: The Power Of Power Point
The New Jersey Supreme Court reversed a criminal conviction for a dramatic closing argument by the prosecutor
In this appeal, the Court considers whether the prosecutor’s comments and use of a particular PowerPoint slide in her closing at the trial of defendant Damon Williams amounted to prejudicial error.
In 2014, defendant entered a Bank of America branch. He approached the window of Maria Cervantes, a bank teller in her early twenties, bent down until the two were at eye level, and leaned toward the bars above the counter separating tellers from customers. Defendant then passed Cervantes a note that said, “Please, all the money, 100, 50, 20, 10. Thank you.” Cervantes opened her cash drawer and gave defendant about $4,600. When she tried to include a pack of $20 bills containing a GPS tracker and a device that would trigger a silent alarm, defendant instructed her not to. During the encounter, defendant did not produce a weapon or threaten the use of a weapon, nor did he verbally threaten violence if Cervantes did not comply with his request. Defendant then walked out of the bank and another teller triggered the alarm.
The central trial issue was whether defendant committed second-degree robbery — theft using force or the threat of force, purposely putting Cervantes in fear of immediate bodily injury — or third degree theft — exercising unlawful control over the movable property of another with purpose to deprive him thereof.
Throughout the trial, the State repeated the theme “actions speak louder than words.” During her summation, the prosecutor displayed to the jury a PowerPoint slide with the heading “ACTIONS SPEAK LOUDER THAN WORDS.” The slide contained a still-shot from the movie The Shining, depicting Jack Nicholson in his role as a violent psychopath who used an ax to break through a door while attempting to kill his family. The slide featured the words spoken by Nicholson in the movie as he stuck his head through the broken door — “Here’s Johnny!” The prosecutor commented that the character was “saying some very unthreatening words, ‘Here’s Johnny.’ But if you have ever seen the movie The Shining, you know how his face gets through that door. So, again, I just point that out to illustrate. It’s not just the words; it’s what you do before and what you do after the words that matters. And that’s what makes this a robbery.”
After the prosecutor concluded her summation, defense counsel objected to the photo’s use. During a colloquy, the trial judge offered a curative instruction, but stated, “If I do that though, I’m underscoring again, the prosecution’s arguments.” Defense counsel ultimately agreed that “it may be best left alone.” Thus, the court did not give a curative instruction. The jury convicted defendant of second-degree robbery.
The court found the comments led to prejudicial error.
Visual aids such as PowerPoint presentations must adhere to the same standards as counsels’ spoken words. In that regard, we agree with guidance the Delaware Supreme Court provided in Spence v. State:
This Court does not seek to discourage the use of technology in closing arguments to summarize and highlight relevant evidence for the benefit of the jury. But slides may not be used to put forward impermissible evidence or make improper arguments before the jury. A PowerPoint may not be used to make an argument visually that could not be made orally. While prosecutors are given latitude in making closing arguments, [their] comments must be limited to properly admitted evidence and any reasonable inferences or conclusions that can be drawn therefrom. 129 A.3d 212, 223 (Del. 2015).]
The PowerPoint here fell short of that standard.
(Mike Frisch)