Metropolitan News-Enterprise


Tuesday, November 3, 2009


Page 3


Appeals Court: Prosecutor’s PowerPoint Presentation Not Prejudicial


By SHERRI M. OKAMOTO, Staff Writer


A prosecutor’s use of a PowerPoint presentation during her closing argument to illustrate the reasonable doubt standard was improper but not prejudicial, the Third District Court of Appeal held yesterday.

The panel cautioned that employing visual aids to “enliven closing argument” is “dangerous and unwise,” although it affirmed Herbert Katzenberger’s conviction for inflicting corporal injury on the mother of his child.

At Katzenberger’s trial, the prosecutor finished her closing argument to the jury by quoting the portion of CALCRIM 220 concerning reasonable doubt.

She then informed the jury that “[t]here’s a little picture that’s going to come up here on the screen” that “relates to the jury instruction that I just read,” proposing that the jurors would “know what this picture is even before all the pieces come up.”

PowerPoint Program

The prosecutor apparently then started a PowerPoint program involving a slide show beginning with six different pieces of a puzzle coming onto the screen sequentially, creating an easily recognizable depiction of the Statue of Liberty. It finished when the sixth puzzle piece is in place, leaving two rectangular pieces missing from the picture.

The defense objected to the picture, claiming it “deamean[ed] the reasonable doubt instruction,” but Sutter Superior Court Judge James Dawson overruled the objection.

The prosecutor then told the jury “[w]e know this picture is beyond a reasonable doubt without looking at all the pieces of that picture,” emphasizing that all of the puzzle pieces were not required to be able to recognize the image depicted.

She informed the jury that they were obligated to “judge this case beyond a reasonable doubt” and argued that the standard was met in this case.

Katzenberger contended in his closing that there was “plenty of doubt in this case,” insisting that the prosecutor’s presentation was a “travesty…that’s not reasonable doubt at all.”

He then described the high standard required for beyond a reasonable doubt and argued it was not met in this case because he had not caused any injury to the alleged victim.

After a brief rebuttal argument by the prosecution, Dawson told the jury that to “clarify things,” he would read the instructions on reasonable doubt.

He reminded the jury that it would have the instructions in the jury room and then he read the jury instructions.

After less than 45 minutes of deliberation, the jury returned with a verdict finding Katzenberger guilty.

Writing for the appellate court, Justice Tani Cantil-Sakauye agreed with Katzenberger’s claim that the PowerPoint presentation had misrepresented the reasonable doubt standard.

 “The presentation, with the prosecutor’s accompanying argument, leaves the distinct impression that the reasonable doubt standard may be met by a few pieces of evidence,” she opined. “It invites the jury to guess or jump to a conclusion, a process completely at odds with the jury’s serious task of assessing whether the prosecution has submitted proof beyond a reasonable doubt.” 

Measure of Doubt

Additionally, Cantil-Sakauye reasoned that the prosecutor’s statement that six out of eight pieces would satisfy the reasonable doubt standard implied a specific quantitative measure of doubt.

 The combination of “an easily recognizable iconic image along with the suggestion of a quantitative measure of reasonable doubt combined to convey an impression of a lesser standard of proof than the constitutionally required standard of proof beyond a reasonable doubt,” the justice said.

But Cantil-Sakauye noted that the jury was alerted to the dispute regarding the presentation and that it had been instructed with the correct definition of reasonable doubt.

She added that “this was not a close case” and there was “no indication the jury had difficulty reaching a verdict.”

Under these circumstances, the justice reasoned, the prosecutor’s misconduct had not prejudiced Katzenberger.

The case is People v. Katzenberger, C058883.


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