The Court of Appeals has given the green light to the prosecution’s use of PowerPoint on summation, reasoning that visual demonstrations can be evaluated in the same way as oral statements (NYLJ, April 6). But the dissent points out that there’s a big difference between how we process images and words. Because we tend to uncritically believe what we see, the persuasiveness of visual demonstrations has the potential to interfere with the kind of reasoned deliberation we expect of a jury.
This controversy isn’t new. Wigmore observed over a century ago that visual demonstrations can positively substitute for proof. Does Doe accuse Roe of stealing a horse? Have a horse brought into the courtroom and triumphantly say, “If you doubt me, there is the very horse!” The jury will consider the sight of the horse to be definitive corroboration and ignore any weakness of the evidence against Roe. See 7 Wigmore on Evidence §2129.
One hoped-for effect of the court’s approval of visual aids is that it might inspire the appellate divisions to re-examine their blanket prohibition against images in briefs. Because projected images have become practically a requirement at trial, more and more transcripts go on for pages with something like, “Officer, could you show the spot from which you had a clear, unobstructed view of the shootout? And point to where each of the ten people was standing? Is that the defendant by the lamppost?” Yet, the brief writer is expected to convey all this in lucid prose while not being allowed to embed the photos and diagrams shown to the jury. And forget about features such as hyperlinks to the transcript and cited cases, since the judges are still reading paper briefs.
Now that trial courts have caught up to the digital age, perhaps appellate courts will consider updating the rules from the days of carbon paper and quill pens.
The writer is an appellate attorney in New York