Stamping “GUILTY” across the face of a defendant’s picture is bad. If you can’t say it during trial, you can’t turn it into a picture for your close. This basic fact pisses off prosecutors, so they’re taking it out on defense attorneys who simply want to present images that convey an idea in support of closing arguments. Judges cite to two different Washington cases in support of their ban on visual aids for the jury: 1) In Re Personal Restraint of Glassmant, 175 Wn.2d 696 (2013); and, 2) WA v. Walker, No. 89830-8 (2015).
Both of these cases deal with PowerPoint slides produced by prosecutors, which unfairly comment on the defendant, or the evidence. A point of the slides is that they call the defendant “Guilty”, which violates rules of professional conduct, or they otherwise appeal to the passions of the jury.
Appealing to the passions of the jury simply means that the visual graphics motivate the jury on an emotional level causing them to ignore evidence, and logic to come to a conclusion. I understand this argument, but there’s a big difference: I simply used graphics to show the point I was making.
In my drive-by shooting case, a State’s witness testified that he was only 70% confident in picking my client as the shooter. I asked the jury if they would buy a scale that was only 70% accurate, and I posted this graphic of a scale:
I never intended the scale to convey any relevent evidence. It was simply meant to highlight a scale, and an analogy. The prosecutor successfully argued that the graphic wasn’t admitted into evidence, so showing it to the jury was inappropriate.
Fair enough, I will now admit all of my graphics through various experts and witnesses before trial, or during trial, so that I have a visually pleasing closing argument.
Although, I learned something during this experience, I’m still a bit confounded that I couldn’t show the jury a graphic that does nothing more than exemplify what I was trying to convey. Judges are gunshy, and prosecutors are not creative. That makes for a tough fight getting graphics included in the defense close. Keep fighting, and let me know what argument works for you.
~ Jim Oliver, Partner