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Opening and closing statements and the use of PowerPoint slides got prosecutors into hot water in three different states in October, with appellate courts reversing convictions after finding that those prosecutors made improper arguments about defendants or their lawyers.

A New Jersey prosecutor’s “antics” led to the reversal of an attempted murder conviction last month when a state appellate court found that his “bizarre behavior” throughout trial had the cumulative impact of prejudicing the jury against the defendant. mycentralnewjersey.com reports that Assistant Prosecutor Douglas Herring:

  • Climbed into the jury box during defense cross-examinations of a state witness because the defendant was occupying his seat. The court found that Herring’s action could have communicated to the jury that the defendant was “too dangerous or untrustworthy to be near.”
  • Made the improper declaration that Rivera was guilty during opening statements. The court characterized this as “an egregious interference with defendant’s right to a fair trial.”
  •  Showed a PowerPoint presentation during closing arguments that included a slide depicting Rivera’s picture and a statement that read, “Defendant GULITY OF: ATTEMPTED MURDER.”

This is not the first time that PowerPoint has been used improperly by prosecutors. Last year we reported on a Washington State prosecutor who similarly showed a picture of the defendant with the word “guilty” superimposed over it. Including a slide that asserts the guilt of the defendant in a presentation about what evidence a jury has been or will will be shown over the course of trial confuses what is evidence and what is really just the prosecutor’s argument.

In Oregon last month, the same sort of slide led to yet another reversal, this time in a murder case. The Oregon Court of Appeals overturned Michael Lee Reineke’s murder conviction after finding that deputy district attorneys Megan Johnson and Beth Roberts (now a circuit court judge) violated the defendant’s right to remain silent when showing Reineke’s picture with the word “GUILTY” on a PowerPoint slide and listing his refusal to speak to police as evidence to support that contention. In fact, the court found there were at least three different slides that alluded to the Reineke’s silence as evidence of his guilt. The appellate court wrote,

“The prosecutor’s PowerPoint presentation expressly urged the jury to decide that defendant’s refusal to speak to the police was one of the four reasons that he was guilty of murdering the victim…Those repeated references to defendant’s silence and guilt during closing argument were not subtle, isolated or fleeting… We conclude that it is highly likely that the jury drew an adverse inference that defendant’s refusal to speak to the detectives was evidence of his guilt.”

See the court’s opinion here.

In Mililani, Hawaii, Richard Silva III was convicted of three felonies following a confrontation that left two men with gunshot wounds. But the Intermediate Court of Appeals found last month that prosecutors committed prosecutorial misconduct during closing argument and reversed all three convictions. The court found that prosecutors had:

  • Improperly implied that Silva’s attorney was lying.
  • Misstated the law to the jury about self-defense on two occasions when he “left out the fact that the defendant had to know that he could avoid the necessity of using such force with complete safety by [retreating].” Because the judge failed to give a curative instruction or clarify the law to the jury, the court found that a new trial was warranted.

Read the court’s opinion here.


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