Today, it is rare for a trial to take place without the use of PowerPoint presentations. They most often appear during opening statement, the examination of experts, and closing argument. So let’s suppose that opposing counsel puts up a PowerPoint with highly prejudicial images or misrepresentations about your client. Of course you object. The court sustains your objection, orders the particular slides removed, instructs the jury accordingly, but denies your motion for a mistrial. Thereafter, you suffer an adverse verdict. You have done what you need to pursue this issue on appeal, right? Wrong.
If you plan to raise the use of the PowerPoint as an issue on appeal, you better make sure the digital slideshow is put into the record. Failure to do so may result in waiver.
An illustration of this is presented in State v. Kalmio, 846 N.W.2d 752 (N.D. 2014). There, the State used a PowerPoint during its closing argument to display slides with images not in evidence of a gun and red circles, which the defendant argued resembled blood. The trial court denied the defendant’s motion for a mistrial, had the images removed, and instructed the jury to disregard them.
On appeal, the defendant raised the issue of the prosecutor’s use of the slides to stir passions of the jury. However, the North Dakota Supreme Court concluded that the defendant failed to preserve the issue. It held that although there were “verbal descriptions of the excluded images” in the record, “[w]ithout the images in the record, we are unable to conclude the use of the images was misconduct.” The supreme court further presumed that the jury followed the trial court’s instructions to disregard the images.
Preservation Issue: The failure to move a PowerPoint presentation used at trial into evidence may result in waiver of any argument related to it during the post-trial motion stage, or on appeal.
Tip(s): Dealing with objections to a PowerPoint should be no different than any other piece of evidence. But, because a PowerPoint is not a piece of physical exhibit, it is easy to forget about it. Kalmio stands as a reminder that the appellate court must be able to see what a party is complaining about, not just read a description of it.
In our experience, there is an even greater issue associated with the use of PowerPoints. That issue relates to the failure to include all PowerPoints used at trial into the record, regardless of whether they are the subject of an objection. The reason is simple. Since the PowerPoint is often used by the lawyer as a way to help the witness explain his testimony, the testimony makes no sense when read by the appellate court if the Powerpoint is not placed in the record.
So remember to insist that all PowerPoints be made part of the record.