Closing Argument Misconduct

On January 22, 2015, the Washington State Supreme Court issued a unanimous opinion holding defendant’s right to a fair trial had been violated when the prosecutor used a PowerPoint presentation during their closing argument. In State v. Walker, the defendant had been convicted of accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy after having his case tried to a jury in Pierce County. Mr. Walker appealed the guilty verdict on several grounds including prosecutorial misconduct. He also appealed on the basis of ineffective assistance of counsel in part because of his counsel’s failure to object to some of the prosecutor’s trial strategies including the use of an inflammatory slide show during closing arguments.

The controversial statements and tactics used by the state throughout the trial resulted in the Washington State Supreme Court reversing all of the defendant’s convictions and remanding for a new trial. The Court cited several concerns with the prosecutor’s conduct including commenting on the defendant’s credibility during opening statements. The Court’s primary focus was on the state’s closing argument citing to a level of impropriety in the state’s tactics that was egregious in nature. Because of the prejudice created by the state’s closing arguments, the court did not address the ineffective assistance of claim made by the defendant.

In its closing argument, the Pierce County prosecuting attorney presented a PowerPoint presentation that was around 250 slides long. Approximately 100 of the slides contained the title “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER”. Another slide had a photograph of the defendant’s booking photograph with the words “GUILTY BEYOND A REASONABLE DOUBT” written over his face in red lettering. Both case law and the rules of professional conduct expressly prohibit attorneys from commenting or vouching on a witness’s credibility. Furthermore, it is inappropriate to express a personal opinion on the ultimate issues of whether a defendant is innocent or guilty – this is the ultimate question for the trier of fact to decide. The Court was very troubled by what appeared to be a blatant disregard for these well-established rules of law.

Other slides depicted photographs that had been admitted as evidence; however, the images had been altered to include inflammatory text such as “MONEY IS MORE IMPORTANT THAN HUMAN LIFE” in bold red lettering. The Court was not only troubled by the altered state of the admitted evidence, but also by the fact that none of the defendants or anyone associated with the case was alleged to have made that statement. Three of the justices published a concurrent opinion to clarify they took no issue with the prosecutor showing evidence that had been properly admitted; however, the altering of the evidence – especially when it commented on the ultimate issue – was impermissible and created reversible error.

In its analysis, the Court confirmed the role of the prosecutor should ultimately be justice and its duty is to the people it represents. In that dual role, the prosecutor must advocate on behalf of citizens while never losing track of the need for a fair trial. The Court explained “we have no difficulty in holding the prosecutor’s conduct in this case was improper. Closing argument provides an opportunity to draw the jury’s attention to the evidence presented, but it does not give a prosecutor the right to present altered version of admitted evidence to support the State’s theory of the case, to present derogatory depictions of the defendant, or to express personal opinions on the defendant’s guilt. Furthermore, RPC 3.4(e) expressly prohibits a lawyer from vouching for any witness’s credibility or stating a personal opinion ‘on the guilt or innocence of the accused.’ The prosecution committed serious misconduct her in the portions of the PowerPoint presentation discussed above.”

The Court’s opinion was strongly worded and clearly expressed its dissatisfaction with the state for engaging in in behavior which so flagrantly disregarded the state’s obligation to seek justice and provide a fair trial. Given the Washington State Supreme Court’s recent rulings, it is clear that attorneys need to proceed with caution when using multi-media during trial. The full text of the opinion can be found here: http://www.courts.wa.gov/opinions/?fa=opinions.disp&filename=898308MAJ

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