Nicole Black, The Daily Record Newswire
With the steady march of technological advancement comes the occasional challenge to the use of new technologies by lawyers. Legal technology is changing at a rapid clip, with new tools emerging all the time. No matter what type of technology it is — cloud-based platforms that help lawyers run their practices, software that helps organize and analyze litigation files, or tools that assist lawyers in making their client’s case at trial — questions can arise regarding both the implementation of and use of the software by lawyers.
Sometimes the issues revolve around the steps lawyers need to take in order to ethically use new technologies in their practice. Other times procedural challenges are raised by opposing counsel. And in some cases, constitutional claims are made which might preclude use of a particular tool at trial.
Such was the case in People v. Williams, No. 28 (http://www.nycourts.gov/ctapps/Decisions/2017/Apr17/28opn17-Decision.pdf), a decision handed down by the New York Court of Appeals last week. At issue was whether the defendant was deprived of his right to a fair and impartial trial as a result of the prosecutor’s use of a PowerPoint presentation during summation.
In this case, the prosecutor used annotated slides showing still photographs from a surveillance video. The annotations implied that the witness depicted therein had identified certain events or people during his testimony. On appeal, the defendant alleged that the way that the prosecutor annotated the images wrongfully implied that the witness, the victim’s brother, had positively identified either his truck or the defendant. Accordingly, he sought a retrial on the grounds that this misrepresentation of the witness’s testimony deprived him of a fair trial.
At the outset, the Court opined on whether lawyers may use technology designed to visually supplement an attorney’s summation, concluding that doing so was permissible, with certain limitations: “There is no inherent problem with the use of a PowerPoint presentation as a visual aid in connection with closing arguments. Indeed, it can be an effective tool. But, 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.”
Next, the Court addressed the use of annotations to highlight an argument being made, and determined that lawyers could do so only if the annotations constituted a fair commentary on the evidence presented: “If counsel is going to superimpose commentary to images of trial exhibits, the annotations must, without question, accurately represent the trial evidence (see e.g. People v. Santiago, 22 NY3d 740, 751 [2014]). Moreover, any type of blatant appeal to the jury’s emotions or egregious proclamation of a defendant’s guilt would plainly be unacceptable.”
The court then emphasized the importance of providing jurors with sufficient guidance regarding the weight that should be given to the information depicted on the slides: “In any particular case, where there is a concern that it will not be clear to the jury that the annotated PowerPoint slides are not in evidence, or a substitute for the actual evidence, a specific jury instruction will serve to emphasize that such representations are merely argument by counsel.”
Finally, the Court concluded that in the case at hand, although the annotations in question arguably included implications that were not a fair commentary on the evidence, the jury instructions provided by the trial court clarified that the attorney’s arguments did not constitute evidence, thus effectively limiting any harmful effects. Accordingly the court upheld the Appellate Division’s ruling, which affirmed the defendant’s convictions.
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Nicole Black is a director at MyCase.com, a cloud-based law practice management platform. She is also of counsel to Fiandach & Fiandach in Rochester and is a GigaOM Pro analyst. She is the author of the ABA book “Cloud Computing for Lawyers,” coauthors the ABA book “Social Media for Lawyers: the Next Frontier,” and co-authors “Criminal Law in New York,” a West-Thomson treatise. She speaks regularly at conferences regarding the intersection of law and technology. She publishes three legal blogs and can be reached at niki@ mycase.com.
