Lead Opinion
By the Court,
We consider 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.
I.
Frankie Alan Watters was charged with and convicted of possession of a stolen vehicle, grand larceny of a vehicle, and failure to stop on the signal of a police officer. The charges grew out of a crime spree in which Watters allegedly stole a car, got in a wreck, fled, stole another car, became involved in a high-speed chase, ditched the second car, ran into a store, and was finally arrested after being knocked to the ground and bitten several times in the leg by a police dog.
At trial, the State used a PowerPoint to support its opening statement to the jury. The presentation included a slide showing Watters’s booking photo with the word “GUILTY” written across his battered face.
[[Image here]]
Figure 1. Prosecutor’s opening statement PowerPoint slide.
The defense reviewed and objected to the booking-photo slide sequence before opening statements began. The district court overruled the objection. It observed that such slides are used “all the time. . . . They’re asking based upon the evidence to find Defendant guilty and [then] they have [guilty] pop up.”
Watters had not been in court when the objection was made. After opening statements, defense counsel made a record that Wat-ters was “very upset” when the prosecution “showed the picture and wrote the word[ ] guilty.” The court assured Watters that his “lawyer did object strongly to that [but] PowerPoints under the case[s are] allowed—both sides are allowed to express where they believe the evidence will take them and the ultimate conclusion that the jury should reach, and that’s all that photograph does.”
n.
“A criminal defendant has a fundamental right to a fair trial secured by the United States and Nevada Constitutions.” Hightower v. State, 123 Nev. 55, 57, 154 P.3d 639, 640 (2007) (citing U.S. Const. amend. XIV; Nev. Const. art. 1, § 8). “The presumption of innocence, although not articulated in the Constitution, is a basic component of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976). “Central to the right to a fair trial, guaranteed by the Sixth and Fourteenth Amendments, is the principle that ‘one accused of a crime is entitled to have his guilt or innocence determined solely on the basis of the evidence introduced at trial, and not on grounds of official suspicion, indictment, continued custody, or other circumstances not adduced as proof at trial.’ ” Holbrook v. Flynn, 475 U.S. 560, 567 (1986) (quoting Taylor v. Kentucky, 436 U.S. 478, 485 (1978)).
The booking-photo slide sequence declared Watters guilty before the first witness was called and should not have been allowed. An opening statement outlines “what evidence will be presented, to make it easier for the jurors to understand what is to follow, and to relate parts of the evidence and testimony to the whole; it is not an
The State contends that State v. Sucharew, 66 P.3d 59, 63-64 (Ariz. Ct. App. 2003), and Dolphy v. State, 707 S.E.2d 56, 58 (Ga. 2011), support its PowerPoint-supported opening statement to the jury. But in Sucharew, the prosecution’s PowerPoint ‘ ‘was essentially a slide show of photographic exhibits” and “was not prejudicial or inflammatory.” 66 P.3d at 63-64. And in Dolphy, the trial court sustained the defendant’s objection to the prosecution’s use in opening statement of PowerPoint slides that read “Defendant’s Story Is a Lie” and “People Lie When They Are Guilty.” 707 S.E.2d at 57. The question in Dolphy was whether the trial court’s “immediate corrective action, ordering that the slides be taken down” and curative instructions defeated Dolphy’s argument that “the trial court . . . deprive[d him] of a fair trial by failing to declare a mistrial sua sponte.” Id.
As these cases suggest, PowerPoint, as an advocate’s tool, is not inherently good or bad. Its propriety depends on content and application. A prosecutor may use PowerPoint slides to support his or her opening statement so long as the slides’ content is consistent with the scope and purpose of opening statements and does not put inadmissible evidence or improper argument before the jury. See Sucharew, 66 P.3d at 63-64. But a PowerPoint may not be used to make an argument visually that would be improper if made orally. See Dolphy, 707 S.E.2d at 58. Compare Allred v. State, 120 Nev. 410, 419, 92 P.3d 1246, 1252-53 (2004) (upholding State’s use of annotated photographs as demonstrative exhibits in closing argument where the photographs were in evidence and the district court ordered the argumentative annotations removed), with In re Glasmann, 286 P.3d 673, 676, 678-79 (Wash. 2012) (reversing
Here, the prosecutor orally declared that she would be asking the jurors to find Watters guilty. But the PowerPoint that accompanied her declaration displayed Watters’s booking photograph with a pop-up that directly labeled him “GUILTY.” These are not just two different ways of saying the same thing, as the State suggests. While the oral statement told the jurors that they could expect the prosecutor to ask for a guilty verdict at the end of the trial, the PowerPoint slide directly declared Watters guilty.
The prosecution could not orally declare the defendant guilty in opening statement. Doing so would amount to improper argument and the expression of personal opinion on the defendant’s guilt, which is forbidden. See Collier v. State, 101 Nev. 473, 480, 705 P.2d 1126, 1130 (1985) (a prosecutor should not express her personal opinion on the defendant’s guilt; “[b]y stepping out of the prosecutor’s role, which is to seek justice, and by invoking the authority of . . . her own supposedly greater experience and knowledge, a prosecutor invites undue jury reliance on the conclusions personally endorsed by the prosecuting attorney” (citation omitted)). Making this improper argument “visually through use of slides showing [Watters’s] battered face and superimposing . . . capital letters” spelling out GUILTY “is even more prejudicial” than doing so orally. Glasmann, 286 P.3d at 680 (emphasis added). “ ‘[W]ith visual information, people believe what they see and will not step back and critically examine the conclusions they reach, unless they are explicitly motivated to do so. Thus, the alacrity by which we process and make decisions based on visual information conflicts with a bedrock principle of our legal system—that reasoned deliberation is necessary for a fair justice system.’ ” Id. (quoting Lucille A. Jewell, Through a Glass Darkly: Using Brain Science and Visual Rhetoric to Gain a Professional Perspective on Visual Advocacy, 19 S. Cal. Interdisc. L.J. 237, 293 (2010)); see Mary Susan Weldon & Henry L. Roediger, HI, Altering Retrieval Demands Reverses the Picture Superiority Effect, 15 Memory & Cognition 269, 269 (1987) (research shows that pictures are typically remembered better than words). We therefore conclude
The error undermined the presumption of innocence, see NRS 175.191; State v. Teeter, 65 Nev. 584, 642, 200 P.2d 657, 685 (1948), overruled on other grounds by In re Wheeler, 81 Nev. 495, 499, 406 P.2d 713, 716 (1965), which is a basic component of “[the] fair trial” guaranteed by the Fourteenth Amendment “under our system of criminal justice.” Williams, 425 U.S. at 503. Courtroom practices that undermine the presumption of innocence are unconstitutional unless they serve an essential state interest. Flynn, 475 U.S. at 568. A courtroom practice undermines the presumption of innocence when “an unacceptable risk is presented of impermissible factors coming into play” in the jury’s evaluation of the evidence. Williams, 425 U.S. at 505. Routinely allowing prosecutors to use booking photos with “guilty” written across them during opening statement does not serve an essential state interest and poses an unacceptable risk that the jury’s mindset will be tainted and the fairness of its fact-finding function impaired. See Arizona v. Washington, 434 U.S. 497, 512 (1978) (“An improper opening statement unquestionably tends to frustrate the public interest in having a just judgment reached by an impartial tribunal. Indeed, such statements create a risk, often not present in the individual juror bias situation, that the entire panel may be tainted.” (footnote omitted)).
A presumption-of-innocence error is of constitutional dimension, so we review for harmless error under the Chapman v. California standard and will reverse if the State fails to prove, beyond a reasonable doubt, that the error did not contribute to the verdict obtained. 386 U.S. 18, 24 (1967); see also Valdez v. State, 124 Nev. 1172, 1188-89, 196 P.3d 465, 476 (2008).
Here, the State argues that the error was harmless because the PowerPoint was not admitted into evidence; the jury was instructed on the presumption of innocence at the beginning and end of trial; the slides were displayed only briefly; and the evidence of Wat-ters’s guilt was overwhelming. All this may be true. But in the presumption-of-innocence context, “[t]he actual impact of a particular practice on the judgment of jurors cannot always be fully determined,” and the Supreme Court “has left no doubt that the probability of deleterious effects on fundamental rights calls for close judicial scrutiny.” Williams, 425 U.S. at 504.
Watters also argues that the State presented insufficient evidence to support the jury’s verdict. We conclude that the evidence when viewed in the light most favorable to the State is sufficient to establish his guilt beyond a reasonable doubt as determined by a rational trier of fact. See NRS 205.228(1); NRS 205.273(1)(b); NRS 484B.550(1); Jackson v. Virginia, 443 U.S. 307, 319 (1979). We decline to consider the other issues raised on appeal.
The prosecution did not refer to the picture as a booking photo. Cf. United States v. Simmons, 581 F.3d 582, 589 (7th Cir. 2009) (“the use of mug shots is disfavored and usually impermissible” unless specific need is shown).
Concurrence Opinion
concurring:
I concur in the result only.