PowerPoint, Advocacy and Prosecutor Misconduct

Geraldo Rivera was charged with, and tried for, “attempting to murder Sean and Michael Burns during a fight that started in a liquor store and ended in the parking lot.”  State v. Rivera, 2014 WL 5042454 (Superior Court of New Jersey – Appellate Division 2014). 

The jury acquitted Rivera of those charges but convicted him of lesser-included offenses: second-degree aggravated assault (Sean) and fourth-degree aggravated assault (Michael).  State v. Rivera, supra.  The trial judge then sentenced him to “eight years' imprisonment for the second-degree assault . . . and to a concurrent fifteen months' imprisonment for fourth-degree assault.”  State v. Rivera, supra.

The propriety of the charges, convictions and/or sentence were not the focus of Rivera’s arguments on appeal nor are they the focus of this post.  On appeal, Rivera claimed the “conduct of the assistant prosecutor who tried the case . . . deprived him of a fair trial.”  State v. Rivera, supra. The Appellate Division began its analysis of his arguments by explaining that the

well-established principles guiding prosecutorial conduct are easily stated and not unique to New Jersey. `[T]he primary duty of a prosecutor is not to obtain convictions but to see that justice is done. “It is as much [a prosecutor's] duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one.”’ State v. Timmendequas, 161 N.J. 515, 737 A.2d 55 (Supreme Court of New Jersey 1999) (quoting State v. Farrell, 61 N.J. 99, 293 A.2d 176 (Supreme Court of New Jersey 1972) (quoting Berger v. U.S., 295 U.S. 78 (1935))).

This case demonstrates the need to stress what those principles require. Prosecutors must choose their tactics in conformity with their legal duties. Thus, they are not free to employ a prejudicial tactic just because the precise action has not yet been expressly condemned by the Supreme Court. Similarly, when a reviewing court has declared a method improper in a published opinion but concluded it to be harmless error in that case, compliance with the prosecutor's obligation does not permit repetition. A finding of harmless but improper prosecutorial conduct cannot, consistent with a prosecutor's duty, be understood as a license to mimic an improper method. In this case, the cumulative impact of the prosecutor's transgressions requires reversal.

State v. Rivera, supra.

As to the last point, the Appellate Division goes on to note that

[r]eversal of a conviction based on the prosecutor's conduct is appropriate only if that conduct was `”so egregious that it deprived [the] defendant of a fair trial.”’ State v. DiFrisco, 137 N.J. 434, 645 A.2d 734 (New Jersey Supreme Court 1994) (quoting State v. Pennington, 119 N.J. 547, 575 A.2d 816 (New Jersey Supreme Court 1990)). . . .  Stated differently, reversal is warranted when the prosecutor's conduct `substantially prejudice[s] the defendant's fundamental right to have a jury fairly evaluate the merits of his or her defense.’ State v. Harris, 181 N.J. 391, 859 A.2d 364 (New Jersey Supreme Court 2004).

State v. Rivera, supra.

Rivera pointed to a number of actions on the part of the prosecutor which he claimed had combined to deprive him of his right to a fair trial, but this post will only focus on two of them.  State v. Rivera, supra. The Appellate Division began its analysis with the prosecutor’s conduct during his opening statement to the jury.  State v. Rivera, supra.  As Wikipedia explains, the opening statement is

generally the first occasion that the trier of fact (jury or judge) has to hear from a lawyer in a trial. . . . The opening statement is generally constructed to serve as a `road map’ for the fact-finder. This is especially essential, in many jury trials, since jurors (at least theoretically) know nothing at all about the case before the trial, (or if they do, they are strictly instructed by the judge to put preconceived notions aside).

Though such statements may be dramatic and vivid, they must be limited to the evidence reasonably expected to be presented during the trial. Attorneys generally conclude opening statements with a reminder that at the conclusion of evidence, the attorney will return to ask the fact-finder to find in his or her client's favor. . . .

The Appellate Division begins its analysis of this prosecutor’s conduct during his opening statement by noting that a prosecutor’s

opening statement should be limited to what the prosecutor `will prove’ and `not anticipate’  the prosecutor's summation. State v. Ernst, 32 N.J. 567, 161 A.2d 511 (New Jersey Supreme Court 1960). Defendant's core objection to the prosecutor's opening statement is that the prosecutor declared him guilty of the two attempted murders with which he was charged. The prosecutor did that twice -- graphically with the last screen of the PowerPoint presentation accompanying his opening and orally in the final sentence of his opening.

State v. Rivera, supra.

The court then took up the PowerPoint presentation, explaining that its

twenty-first and final screen contains a photograph showing [Rivera’s] face and neck, which is displayed with a bright red border. It also includes text, printed in the same color and density, `Defendant GUILTY OF: ATTEMPTED MURDER.’ The words `Defendant’ and `GUILTY OF: ‘ appear on separate lines to the right of [Rivera’s] photograph, and `ATTEMPTED MURDER’ appears below the photograph in much larger typeface.

In overruling defense counsel's objection to the PowerPoint, the judge explained, `There's nothing specifically prejudicial in the presentation. . . . [T]his is, merely in my view, advocacy and the method by which Mr. Herring is presenting his opening statement.’

At the conclusion of the oral portion of his opening, the prosecutor declared [Rivera] guilty of attempted murder a second time. He said, `Defendant is guilty of the attempted murder of a man he stabbed five times and a man [whose] intestines he tore out. Defense counsel did not object, perhaps because his objection to the PowerPoint was overruled.

State v. Rivera, supra.

In a footnote, the Appellate Division points out that

Sean testified that [Rivera] stabbed him five times, but he explained he sustained four wounds and one stab did not penetrate at all. Michael testified that his intestines were `hanging out of [him],’ but he did not testify that his intestines were injured, and . . .  there was no testimony from a medical professional. Michael also testified that none of his `organs were hit,’ but he also said a `slice across [his] stomach’ required surgery.

State v. Rivera, supra.

The court then took up the issue of the prosecutor’s using PowerPoint:

Our courts have not yet addressed the use of PowerPoint presentations during opening statements or summations in criminal trials in a published opinion. Other courts have, however, considered the matter.

The Nevada Supreme Court has concluded that a PowerPoint, `as an advocate's tool, is not inherently good or bad” and that “its propriety depends on content and application.’ Watters v. State, 313 P.3d 243 (2013). The Court further determined that a PowerPoint accompanying an opening is permissible if `the content is consistent with the scope and purpose of opening statements and does not put inadmissible evidence or improper argument before the jury.’  Watters v. State, supra.

We fully agree that the content, not the medium, is important. That view is consistent with the approach our Supreme Court has taken with respect to other technological advances used in connection with trial court proceedings. See, e.g., State v. Miller, 205 N.J. 109, 122 (Supreme Court of New Jersey 2011) (directing that in `responding to a request to review testimony, the trial court's focus should be on the proper controls and limits needed to ensure a fair proceeding, not the medium used to create a record’).

State v. Rivera, supra.

The Appellate Division found that when a court is confronted with a pre-presentation

challenge to use of a PowerPoint in an opening, a court should apply the law governing opening statements. In some respects, use of PowerPoints has potential to advance the interests of fairness in opening statements because the court may direct removal of prejudicial material before a prosecutor displays a slide to the jury. That opportunity should not be lost. . . .

Watters v. State, supra involved the prosecutor's display of a PowerPoint slide in opening quite similar to the final slide in this opening. The Court considered `whether the State's use of a PowerPoint during opening statement that includes a slide of the defendant's booking photo with the word “GUILTY” superimposed across it constitutes improper advocacy and undermines the presumption of innocence essential to a fair trial.’ Watters v. State, supra . The Court concluded that it did and reversed the defendant's conviction. 

State v. Rivera, supra.

The Appellate Division then went on to note that, in Watters, the Nevada Supreme Court

reasoned that the declaration of defendant's guilt displayed by the prosecutor was an impermissible expression of the prosecutor's personal opinion on defendant's guilt at least as, if not more, effective in undermining the presumption of innocence as a prosecutor's oral proclamation of defendant's guilt in opening. . . .

The Court rejected the State's suggestion that declaring the defendant guilty in opening is just a `different way[] of saying’ that the prosecutor will be asking the jury to find defendant guilty. Watters v. State, supra. In the Nevada Supreme Court's view, a declaration of the defendant's guilt, unlike an indication that the State will ask the jurors to find the defendant guilty, expresses the prosecutor's opinion. Watters v. State, supra. 

State v. Rivera, supra.

The Appellate Division found the difference to be “more than semantic.”  State v. Rivera, supra. The court noted that it  

is difficult to conclude that a prosecutor's declaration of the defendant's guilt before the first witness is sworn would not have invaded the province of the jurors. It is quite similar to an investigating officer's giving expert or lay opinion testimony on the ultimate issue. Moreover, such a declaration in opening has the capacity to predispose the jurors to take the prosecutor's view of the evidence `without applying their own independent judgment.’ Thornton, supra, 38 N.J. at 398, 185 A.2d 9. . . .

There is another problem presented by a prosecutor's declaration of a defendant's guilt of the crime charged in the State's opening. Such a declaration delivers a message in conflict with the State's obligation to convince the jury of defendant's guilt by proof of each element of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979). It does that by suggesting the decision has been made. It is more akin to a directive than advocacy, and it has the capacity to leave the jury with a lessened sense of its weighty responsibility as the sole judge of the facts and credibility. . . .

State v. Rivera, supra.  It held, therefore, that “a display and oral declaration of defendant's guilt in an opening statement is an egregious interference with defendant's right to a fair trial” and is “`highly likely to `substantially prejudice[] the defendant's fundamental right to have a jury fairly evaluate the merits of’ his defense.’” State v. Rivera, supra (quoting State v. Harris, 181 N.J. 391 (New Jersey Supreme Court 2012)).

The Appellate Division found it did not have to decide whether the “opening statement and PowerPoint were, in themselves, sufficiently prejudicial to require a new trial because there was additional conduct inconsistent with the prosecutor's obligation to try the case fairly.”  State v. Rivera, supra.  Its description and analysis of all of the other conduct is too lengthy to outline here, but I will note one other thing the prosecutor did that seems, at the least, unusual.

As the court explains, during

defense counsel's cross-examination of Sean, the prosecutor climbed into the jury box. When the prosecutor engaged in that bizarre behavior, [Rivera] was assisting his attorney by operating a device used to replay segments of the recording of Sean Burns' statement to the police. Defense counsel was using segments of that recording to point out inconsistencies between Sean's testimony and his out-of-court statements. For reasons not clear on this record, the device was on the prosecutor's table. [Rivera], with the judge's prior approval, was seated there.

`For the record,’ the prosecutor said: `Mr. Rivera is actually set up [at] the State's table using [a] laptop computer hooked onto the projector, using the microphone from the witness stand in order to play the sections, and I believe Mr. Rivera is actually doing that.’ With that introduction, he advised the judge, `The State is trying to find somewhere to be. So I think just so it's clear on the record.’

Indicative of the lack of context of a statement about the clarity of the record, the judge asked, `What's clear?’ The prosecutor said, where Sean Burns `was looking.’

The prosecutor apparently found somewhere else to be for some time. He did not get into the jury box until cross and redirect were completed. He did that during defense counsel's re-cross. Defense counsel asked Sean whether he had told an officer that he thought [Rivera] was `a sissy.’ And after that, defense counsel asked his client to set up the video.

The judge addressed the prosecutor as follows: `Mr. Herring, can you please come out of the jury box? I don't want you that close to the jury.’ As [Rivera] attempted to set up the video, the judge called the attorneys to sidebar, but he spoke to them off the record.

Thereafter, [Rivera’s] lawyer told his client that they would play the video later. The prosecutor called his next witness.

The following day defense moved for a mistrial based on the prosecutor's untoward incursion into the jury box. Defense counsel noted that he had not seen the prosecutor get into the jury box but saw him climbing out of it when the judge addressed him. At oral argument in this court, the State confirmed that there is no entrance to the jury box from the area of the courtroom where counsel tables are located.

During his argument on this motion for a mistrial in the trial court, defense counsel acknowledged that he did not know why the prosecutor climbed in but asserted that it was `highly inappropriate.’ 

State v. Rivera, supra. 

The court goes on to explain that there

is no question that the prosecutor invaded the `space’ reserved for the jury. In defense counsel's opinion, the conduct was so unheard of and so improper as to warrant a mistrial. He indicated that it was the `craziest’ thing he had ever seen done.

The prosecutor noted that he was just looking for a place to stand and write. He acknowledged that it was `probably not the best place for [him] to stand.’ He did not, however, offer any other explanation beyond the need for a place to stand and write, which he said he could do inside the jury box.

State v. Rivera, supra. 

For these and many other reasons, the Appellate Division found that

the cumulative impact of the prosecutor's misconduct leaves us with significant doubt that defendant received a fair trial. Accordingly, we reverse his convictions and remand for further proceedings.

State v. Rivera, supra. 

The news story you can find here notes that the prosecutor “has since gone into private practice”.