In State v. Damon Williams the court was confronted with the issue of whether or not the prosecutor’s use of a photo of Jack Nicholson in the movie The Shining was inappropriate.
In Williams the defendant walked into a local bank branch and engaged a young female bank teller. The defendant then lowered his body so that he was at eye level with the teller and passed her a note instructing her to provide all of the cash in her drawer. In an attempt at mitigating the bank’s losses, the teller attempted to place a GPS traceable package of twenty-dollar bills in the defendant’s bag. The defendant caught on to the teller’s attempt and instructed her not to do so. During the entirety of this interaction the defendant did not threaten force, nor did he brandish any weapons. Upon the defendant’s exit, the bank teller set off the alarm.
The disputed trial issue was whether or not the defendant committed this act with force or the threat of force and whether or not said actions put the bank teller in fear of immediate injury. The defense argued it did not and that the jury should merely consider the offense a theft (i.e. exercising unlawful control over the moveable property of another.)
During closing arguments the State’s attorney projected a power point slide titled, “ACTIONS SPEAK LOUDER THAN WORDS.” The slide had a photo of Jack Nicholson in The Shining. The Shining is a film wherein Nicholson plays a violent, unhinged killer who wields an ax to break through a doorway attempting to kill his family. The slide was also captioned with the words the actor screamed while his face was in the doorway, “Here’s Johnny!” The Prosecutor’s use of this slide was in support of her argument that while ‘Here’s Johnny,” is not necessarily a threatening statement, the words and actions preceding the statement are what make it threatening and frightening.
The Prosecutor’s closing argument was followed by an objection from defense counsel. In his appeal the defendant argued that the prosecutor’s use of the PowerPoint unfairly prejudiced him. The appellate division ruled in favor of the State. The New Jersey Supreme Court granted certification.
In ruling in favor of the defendant the Supreme court found noted that prosecutors should refrain from any actions that could produce a wrongful conviction. More specifically, the court noted that reference to matters not tied to the evidence presented constitute misconduct. The Supreme Court went on to explain that it would only reverse a conviction if the misconduct was so egregious that it denied the defendant a fair trial.
The Court ultimately found that reversal was warranted. The court noted that unlike the film, no physical violence preceded the defendant’s conversation with the bank teller. As such, the prosecutor’s comments exceeded the evidence that had been presented. Additionally, the Court found that defense counsel objected in a timely and appropriate manner. The Court then went on to explain that the the photo and comments made it more likely that jury would find in favor of the State’s argument that a robbery occurred and effected defendant’s right to a fair trial.
Most importantly, the Court attempt to provide guidance for trial lawyers using PowerPoints in the future. The Court explained that adversaries should confer with one another regarding aids they use during summations. While the Court did not mandate such disclosures, it did note that it would be in accordance with best practices.