by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

There have been a number of recent occasions on which prosecutors have argued during bail applications that there is no change in circumstances, seemingly implying that a court cannot reconsider bail.  Occasionally, this is argued in Part I during a bail review.  Increasingly, it is argued at arraignments on indictment.   Although a prosecutor may certainly make the argument in suggesting to the court that the court might want to consider the earlier court's determination, there is no law that binds the Part I judge or arraigning superior court judge to refuse to reconsider bail.  In fact, the law really appears to be the opposite..  But the argument seems to be gaining traction as a way of opposing our bail applications.  As the argument is made more frequently, it seems that some judges are then asking the question, "Is there a change in circumstances?" Defense counsel must be familiar with the law and ready to respond to that question, so that "change in circumstances" does not become the new (wrong) standard for bail applications.

As many of you know, when a defendant is first arraigned in City Court, the attorney doing the arraignment has little or no information about the defendant.  There is an accusatory instrument, perhaps with names and details redacted, and a recommendation from Pre-trial Release Services if they were able to find someone to verify information.  There is an eligibility form which has very little information.  The attorney from the Public Defender's Office does not have the opportunity to go back and discuss details of the person's life, reviewing the bail factors contained in CPL 510.30 like character, reputation, mental condition, employment, family ties, etc.  There has been no  investigation.  So after a fairly quick review, the City Court judge sets bail.  With counsel at arraignment in local courts, the process is changing, but the opportunity to obtain all of the necessary information isn't there.  

So when a City Court judge sets bail based on a quick exchange between attorney and defendant and a pitch by the prosecutor, it wouldn't make sense for that to be the last word on bail.  Keep that in mind when you are asked at a Part I bail application or arraignment in superior court about what the bail was in local court.  Be prepared to respond (if true, of course)  that you were not there, there was no opportunity for someone to engage in a sufficient discussion with the defendant, etc.  (But keep in mind with counsel at arraignment now occurring in local courts, there may be a more extensive conversation than what takes place in City Court - check with the arraigning attorney.  There still has been no investigation, though.)  

It's worth looking  at the applicable bail statutes and case law to consider when a court is bound by a prior determination of bail.  (Spoiler - in Part I, or at arraignment in superior court, never.  In fact, in any situation, probably never, though a habeas court is bound by the record below.)

CPL Articles 500, 510, 520 and 530 address various aspects of bail.  The bail determination that must be made by a local criminal court on arraignment is governed by CPL 530.20 ("Order of recognizance or bail; by local criminal court when action is pending therein.")  That statute addresses when a local criminal court must or may set bail.  

Part I applications

Part I bail review (the review by a superior court of bail set in a local criminal court) is addressed in CPL 530.30 ("Order of recognizance or bail; by superior court judge when action is pending in local criminal court.")  This statute DOES NOT contain any language about "change in circumstances,"  Instead, it addresses the right of a DEFENDANT (not prosecutor) to make an application when the local criminal court is unauthorized to order recognizance or set bail (A felonies, double predicates), has denied an application for recognizance or bail, or has fixed excessive bail.  This statute doeslimit a defendant to one opportunity to make a Part I application. It should be noted that if the legislature had intended the local court's determination to be binding in Part I it would not have allowed for the type of review contained in the statute, and it would have included the "change in circumstances" language.

Since that statute appears to specifically invite a bail application despite a lack of change in circumstances, as the court can review what you consider excessive bail, the phrase shouldn't even make it into the conversation.

Arraignments on indictments

At arraignment on an indictment in superior court, the superior court must also review bail.  The CPL sets forth the obligation of the arraigning court:  CPL 210.15(6), which addresses arraignment upon indictment, states "Upon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in section 530.40, (emphasis added)  issue a securing order, releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff for his future appearance in such action."  530.40 states,  "When a criminal action is pending in a superior court, such court, upon application of a defendant, must or may order recognizance or bail as follows..." Subdivision 2 states "When the defendant is charged with a felony, the court may, in its discretion, order recognizance or bail.  In any such case in which an indictment (a) has resulted from an order of a local criminal court holding the defendant for the action of the grand jury, or (b) was filed at a time when a felony complaint charging the same conduct was pending in a local criminal court, and in which such local criminal court or a superior court judge has issued an order of recognizance or bail which is still effective, the superior court's order may (emphasis added) be in the form of a direction continuing the effectiveness of the previous order."   Again, the language "change in circumstances" does not appear in these statutes.  And again, the legislature could have included it had it so intended.  Instead, the statute permits, but does not in any way require, the felony arraigning court to continue the lower court's order.  

So at arraignment on a felony, the superior court has the option, not the obligation, to continue the prior court's bail or recognizance.  If the arraigning court were bound by the lower court's decision, then a judge in local court would have the authority to set the permanent bail amount on a case that the local court judge does not even have jurisdiction over following indictment.  That wouldn't make sense, would it?

So what's all this about "change in circumstances"?  And why does it seem to be that we are more and more frequently trying to argue a change?

Considerations of change in circumstances

There are two situations where change in circumstances may be a more significant issue.  One is when there has already been a bail application to the superior court.  Subsequent applications may be made, and there is no law barring subsequent applications, but logically, for the court to reconsider, it is likely that the court will want to know what has changed to warrant reconsideration.  Sometimes the change may be passage of time, loss of witnesses, greater understanding of the weakness of the case, better housing for the defendant, or any one of a variety of things. For example, a defendant who sits in jail for months is in changed circumstances.  The factors which are used to secure a defendant's appearance are different from those which effectively sentence him to 9 months or a year without trial.  The demonstrated inability to make bail is a factor from which the court can determine that the bail which seemed reasonable at first may be unreasonably high.  Unchanged circumstances is a reason to choose not to reconsider bail, but it is not a bar to making an application.  

So the question of whether there is a change in circumstances should not deter you from making an application later in your case, but you should have some thoughts about why the court should change its original decision.  

See, e.g. People ex.rel. Rosenthal on behalf of Kolman v. Wolfson:

Changes in relevant facts, of course, may require reconsideration of a bail determination. If there be pertinent evidence which was not submitted to the bail-fixing court in the first instance, principles of orderly process dictate that a renewal of the application for the setting or reduction of bail be made on return to the trial court. (Cf. People ex rel. Llauget v. Cyrta, 35 A.D.2d 724, 315 N.Y.S.2d 246.) That court may not only be familiar with the factual elements of the case but may as well have already weighed pertinent judgmental considerations. Nothing would compel the anticipation that having declined relief on one set of facts, the trial court would automatically or routinely do so on an augmented or supplemented showing. In any event either the initial determination or that made on renewal would be subject in appropriate instances to scrutiny by writ of habeas corpus, thus preserving for that extraordinary procedural vehicle its traditional review function.

People ex rel. Rosenthal on Behalf of Kolman v. Wolfson, 48 N.Y.2d 230, 233, 397 N.E.2d 745, 746 (1979)

Second, as noted in Rosenthal on Behalf of Kolman v. Wolfson, there is a legal procedure in which one superior court may review the bail set by another superior court by writ of habeas corpus.  I think this is where a lot of the "change in circumstances" language is used, and has been conflated with initial bail determinations.

When reviewing a bail determination, the habeas corpus court is limited to the record that was before the nisi prius court, and evidence of a change in circumstances which may affect a bail determination must be submitted to the bail setting court for reconsideration. The decision of that court on the renewal of the bail application would then be subject to review by writ of habeas corpus (People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 422 N.Y.S.2d 55, 397 N.E.2d 745). The habeas corpus court erred by considering evidence of the bail status of a codefendant. “To receive new evidence would be both to frustrate the integrity of the review function and to undertake a de novo bail determination. This the habeas corpus court may not do (People ex rel. Rosenthal v. Wolfson,supra, 233, 422 N.Y.S.2d 55, 397 N.E.2d 745).

People ex rel. Taylor v. Meloni,96 A.D.2d 1149, 468 N.Y.S.2d 94 (4th Dept 1983). 

So the Fourth Department held that the bail setting court should be presented with changes in circumstances rather than the habeas court.  But it wasn't saying that bail could only be changed if there were a change in circumstances.  The habeas court will review the record of the trial court to determine if the bail setting violated constitutional standards or was excessive.

Habeas review

The Fourth Department has addressed the standards for habeas review:

A defendant who contends that a criminal court has unlawfully set bail or that the amount of bail is excessive may seek a writ of habeas corpus (see, CPLR 7010[b]; People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 307 N.Y.S.2d 207, 255 N.E.2d 552). In determining the petition, the court may consider “whether the court [that set bail] abused its discretion pursuant to CPL 510.30 or violated a constitutional standard prohibiting excessive bail or its arbitrary refusal” (People ex rel. Robinson v. Campbell, 184 A.D.2d 988, 585 N.Y.S.2d 604; see also, People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 232, 422 N.Y.S.2d 55, 397 N.E.2d 745; People ex rel. Hunt v. Warden of Riker's Is. Correctional Facility, 161 A.D.2d 475, 476, 555 N.Y.S.2d 742, lv. denied 76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676). Thus, the court did not act in excess of its jurisdiction in determining the issues raised in the petition for a writ of habeas corpus.

Vargason v. Brunetti, 241 A.D.2d 941, 661 N.Y.S.2d 345, 346 (4th Dept 1997)

For further discussion of the scope of review of pursuant to a writ of habeas corpus, see CPLR 70.10(b), as well as the commentaries and cases cited in that section.  I think this may be a tool we do not use often enough.  

So the next time a prosecutor argues that there must be a change in circumstances, and the judge looks at you quizzically, waiting for a description of that change, consider a polite suggestion that "change in circumstances" is not the standard of review for prior bail, the lack of opportunity at the original arraignment to obtain and present relevant facts, and the fact that the court has complete discretion to change the bail, citing the relevant statutes and cases.

by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

There have been a number of recent occasions on which prosecutors have argued during bail applications that there is no change in circumstances, seemingly implying that a court cannot reconsider bail.  Occasionally, this is argued in Part I during a bail review.  Increasingly, it is argued at arraignments on indictment.   Although a prosecutor may certainly make the argument in suggesting to the court that the court might want to consider the earlier court's determination, there is no law that binds the Part I judge or arraigning superior court judge to refuse to reconsider bail.  In fact, the law really appears to be the opposite..  But the argument seems to be gaining traction as a way of opposing our bail applications.  As the argument is made more frequently, it seems that some judges are then asking the question, "Is there a change in circumstances?" Defense counsel must be familiar with the law and ready to respond to that question, so that "change in circumstances" does not become the new (wrong) standard for bail applications.

As many of you know, when a defendant is first arraigned in City Court, the attorney doing the arraignment has little or no information about the defendant.  There is an accusatory instrument, perhaps with names and details redacted, and a recommendation from Pre-trial Release Services if they were able to find someone to verify information.  There is an eligibility form which has very little information.  The attorney from the Public Defender's Office does not have the opportunity to go back and discuss details of the person's life, reviewing the bail factors contained in CPL 510.30 like character, reputation, mental condition, employment, family ties, etc.  There has been no  investigation.  So after a fairly quick review, the City Court judge sets bail.  With counsel at arraignment in local courts, the process is changing, but the opportunity to obtain all of the necessary information isn't there.  

So when a City Court judge sets bail based on a quick exchange between attorney and defendant and a pitch by the prosecutor, it wouldn't make sense for that to be the last word on bail.  Keep that in mind when you are asked at a Part I bail application or arraignment in superior court about what the bail was in local court.  Be prepared to respond (if true, of course)  that you were not there, there was no opportunity for someone to engage in a sufficient discussion with the defendant, etc.  (But keep in mind with counsel at arraignment now occurring in local courts, there may be a more extensive conversation than what takes place in City Court - check with the arraigning attorney.  There still has been no investigation, though.)  

It's worth looking  at the applicable bail statutes and case law to consider when a court is bound by a prior determination of bail.  (Spoiler - in Part I, or at arraignment in superior court, never.  In fact, in any situation, probably never, though a habeas court is bound by the record below.)

CPL Articles 500, 510, 520 and 530 address various aspects of bail.  The bail determination that must be made by a local criminal court on arraignment is governed by CPL 530.20 ("Order of recognizance or bail; by local criminal court when action is pending therein.")  That statute addresses when a local criminal court must or may set bail.  

Part I applications

Part I bail review (the review by a superior court of bail set in a local criminal court) is addressed in CPL 530.30 ("Order of recognizance or bail; by superior court judge when action is pending in local criminal court.")  This statute DOES NOT contain any language about "change in circumstances,"  Instead, it addresses the right of a DEFENDANT (not prosecutor) to make an application when the local criminal court is unauthorized to order recognizance or set bail (A felonies, double predicates), has denied an application for recognizance or bail, or has fixed excessive bail.  This statute does limit a defendant to one opportunity to make a Part I application. It should be noted that if the legislature had intended the local court's determination to be binding in Part I it would not have allowed for the type of review contained in the statute, and it would have included the "change in circumstances" language.

Since that statute appears to specifically invite a bail application despite a lack of change in circumstances, as the court can review what you consider excessive bail, the phrase shouldn't even make it into the conversation.

Arraignments on indictments

At arraignment on an indictment in superior court, the superior court must also review bail.  The CPL sets forth the obligation of the arraigning court:  CPL 210.15(6), which addresses arraignment upon indictment, states "Upon the arraignment, the court, unless it intends to make a final disposition of the action immediately thereafter, must, as provided in section 530.40, (emphasis added)  issue a securing order, releasing the defendant on his own recognizance or fixing bail or committing him to the custody of the sheriff for his future appearance in such action."  530.40 states,  "When a criminal action is pending in a superior court, such court, upon application of a defendant, must or may order recognizance or bail as follows..." Subdivision 2 states "When the defendant is charged with a felony, the court may, in its discretion, order recognizance or bail.  In any such case in which an indictment (a) has resulted from an order of a local criminal court holding the defendant for the action of the grand jury, or (b) was filed at a time when a felony complaint charging the same conduct was pending in a local criminal court, and in which such local criminal court or a superior court judge has issued an order of recognizance or bail which is still effective, the superior court's order may (emphasis added) be in the form of a direction continuing the effectiveness of the previous order."   Again, the language "change in circumstances" does not appear in these statutes.  And again, the legislature could have included it had it so intended.  Instead, the statute permits, but does not in any way require, the felony arraigning court to continue the lower court's order.  

So at arraignment on a felony, the superior court has the option, not the obligation, to continue the prior court's bail or recognizance.  If the arraigning court were bound by the lower court's decision, then a judge in local court would have the authority to set the permanent bail amount on a case that the local court judge does not even have jurisdiction over following indictment.  That wouldn't make sense, would it?

So what's all this about "change in circumstances"?  And why does it seem to be that we are more and more frequently trying to argue a change?

Considerations of change in circumstances

There are two situations where change in circumstances may be a more significant issue.  One is when there has already been a bail application to the superior court.  Subsequent applications may be made, and there is no law barring subsequent applications, but logically, for the court to reconsider, it is likely that the court will want to know what has changed to warrant reconsideration.  Sometimes the change may be passage of time, loss of witnesses, greater understanding of the weakness of the case, better housing for the defendant, or any one of a variety of things. For example, a defendant who sits in jail for months is in changed circumstances.  The factors which are used to secure a defendant's appearance are different from those which effectively sentence him to 9 months or a year without trial.  The demonstrated inability to make bail is a factor from which the court can determine that the bail which seemed reasonable at first may be unreasonably high.  Unchanged circumstances is a reason to choose not to reconsider bail, but it is not a bar to making an application.  

So the question of whether there is a change in circumstances should not deter you from making an application later in your case, but you should have some thoughts about why the court should change its original decision.  

See, e.g. People ex.rel. Rosenthal on behalf of Kolman v. Wolfson:

Changes in relevant facts, of course, may require reconsideration of a bail determination. If there be pertinent evidence which was not submitted to the bail-fixing court in the first instance, principles of orderly process dictate that a renewal of the application for the setting or reduction of bail be made on return to the trial court. (Cf. People ex rel. Llauget v. Cyrta, 35 A.D.2d 724, 315 N.Y.S.2d 246.) That court may not only be familiar with the factual elements of the case but may as well have already weighed pertinent judgmental considerations. Nothing would compel the anticipation that having declined relief on one set of facts, the trial court would automatically or routinely do so on an augmented or supplemented showing. In any event either the initial determination or that made on renewal would be subject in appropriate instances to scrutiny by writ of habeas corpus, thus preserving for that extraordinary procedural vehicle its traditional review function.

People ex rel. Rosenthal on Behalf of Kolman v. Wolfson, 48 N.Y.2d 230, 233, 397 N.E.2d 745, 746 (1979)

Second, as noted in Rosenthal on Behalf of Kolman v. Wolfson, there is a legal procedure in which one superior court may review the bail set by another superior court by writ of habeas corpus.  I think this is where a lot of the "change in circumstances" language is used, and has been conflated with initial bail determinations.

When reviewing a bail determination, the habeas corpus court is limited to the record that was before the nisi prius court, and evidence of a change in circumstances which may affect a bail determination must be submitted to the bail setting court for reconsideration. The decision of that court on the renewal of the bail application would then be subject to review by writ of habeas corpus (People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 422 N.Y.S.2d 55, 397 N.E.2d 745). The habeas corpus court erred by considering evidence of the bail status of a codefendant. “To receive new evidence would be both to frustrate the integrity of the review function and to undertake a de novo bail determination. This the habeas corpus court may not do (People ex rel. Rosenthal v. Wolfson, supra, 233, 422 N.Y.S.2d 55, 397 N.E.2d 745).

People ex rel. Taylor v. Meloni, 96 A.D.2d 1149, 468 N.Y.S.2d 94 (4th Dept 1983). 

So the Fourth Department held that the bail setting court should be presented with changes in circumstances rather than the habeas court.  But it wasn't saying that bail could only be changed if there were a change in circumstances.  The habeas court will review the record of the trial court to determine if the bail setting violated constitutional standards or was excessive.

Habeas review

The Fourth Department has addressed the standards for habeas review:

A defendant who contends that a criminal court has unlawfully set bail or that the amount of bail is excessive may seek a writ of habeas corpus (see, CPLR 7010[b]; People ex rel. Klein v. Krueger, 25 N.Y.2d 497, 307 N.Y.S.2d 207, 255 N.E.2d 552). In determining the petition, the court may consider “whether the court [that set bail] abused its discretion pursuant to CPL 510.30 or violated a constitutional standard prohibiting excessive bail or its arbitrary refusal” (People ex rel. Robinson v. Campbell, 184 A.D.2d 988, 585 N.Y.S.2d 604; see also, People ex rel. Rosenthal v. Wolfson, 48 N.Y.2d 230, 232, 422 N.Y.S.2d 55, 397 N.E.2d 745; People ex rel. Hunt v. Warden of Riker's Is. Correctional Facility, 161 A.D.2d 475, 476, 555 N.Y.S.2d 742, lv. denied 76 N.Y.2d 703, 559 N.Y.S.2d 982, 559 N.E.2d 676). Thus, the court did not act in excess of its jurisdiction in determining the issues raised in the petition for a writ of habeas corpus.

Vargason v. Brunetti, 241 A.D.2d 941, 661 N.Y.S.2d 345, 346 (4th Dept 1997)

For further discussion of the scope of review of pursuant to a writ of habeas corpus, see CPLR 70.10(b), as well as the commentaries and cases cited in that section.  I think this may be a tool we do not use often enough.  

So the next time a prosecutor argues that there must be a change in circumstances, and the judge looks at you quizzically, waiting for a description of that change, consider a polite suggestion that "change in circumstances" is not the standard of review for prior bail, the lack of opportunity at the original arraignment to obtain and present relevant facts, and the fact that the court has complete discretion to change the bail, citing the relevant statutes and cases.

The Court of Appeals Addresses The Use of Powerpoint in Summation

by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

In People v. Cheryl Santiago, 2014 N.Y. Slip Op. 01261 (2/25/14)  the Court of Appeals  addressed several issues, including sufficiency of the corroboration of defendant's confession, admissibility of letters (with sexual content) written by the defendant to another inmate who testified about alleged admissions she made to him and the use of a Powerpoint presentation by the prosecution during summation. The defendant had been convicted of murder in the second degree following the suffocation death of her toddler stepdaughter.  

The Powerpoint issue is what caught my attention.  What is the place of Powerpoint in a summation or trial?  I haven't caught up with the technology in my trial practice, but this is certainly an area where we will have to become fluent.  What if the slides use words?  Are they demonstrative evidence that still have to be marked?  How does one do that?  What happens when you have parts of a Powerpoint that are animated?  How is that reflected in the transcript?

In Santiago, the Powerpoint took the same period of time that supposedly passed during the child's suffocation.  Postmortem slides of the child in the Powerpoint were displayed on the screen, introduced by the prosecutor, "[I]f there's any question in your mind how long six minutes take, take a look at this."   The slides showed a postmortem photo (or photos), changing at regular intervals, each successive slide fading, until the last one was white.  Some had captions:  "'one and a half to two minutes, struggle ends, and 'four minutes, brain death occurs..."

Here's what the Court wrote, in holding that the issues involving the Powerpoint were not preserved for review,:

In summation, 'counsel is to be afforded 'the widest latitude by way of comment, denunciation or appeal in advocating his cause' '(cites omitted), though within limits that are principally those of relevance (cite omitted).  Had defense counsel objected, the trial court would have had the opportunity to decide whether the challenged aspect of the Powerpoint presentation constituted 'a fair comment on the evidence' or was instead 'totally irrelevant to any legitimate issue presented at the trial (cites omitted)."  The Court stated that "[w]hether the trial court would have been required by the law to sustain an objection to the entirety of the Powerpoint presentation is not clear from this record...The slides depicting an already admitted photograph with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury's emotions....On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30 second intervals over a six-minute period - with each slide fading more and more to white, and the final slide appearing totally white - is difficult to discern.  This did not show how Justice's death occurred nor would it have aided the jury in its fact-finding function

Justice Rivera's dissent provides some guidance on the objection to make regarding Powerpoint presentations:

Defense counsel's failure to object to the prosecutor's use during summation of a Powerpoint presentation that manipulated the evidence, and was designed to inflame the passion of the jury in order to engender prejudice against the defendant, constitutes an error of the type that so tainted the jury's deliberative process as to deny defendant a fair trial.

Judge Rivera continued:

We have admonished that the prosecutor's summation 'should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a  decided tendency to prejudice the jury against the defendant (cites omitted).  Where a prosecutor's summation 'venture[s] well beyond the evidence and the bounds of fair comment,' a defendant is deprived of a fair trial (cites omitted)....Summation 'must stay within 'the four corners of the evidence'...and avoid irrelevant comments which have no bearing on any legitimate issue in the case (cites omitted)..

The dissent contains a great discussion of what is permissible in a prosecutor's summation.

So if there is a Powerpoint used during summation, consider the following:
1.  Is it accurate in its depiction of an aspect of the case?  (Justice Rivera noted the disappearing corpse did not accurately reflect the appearance of the child during that six minutes.)
2.  Is its emphasis to inflame the passion of the jury, rather than review the evidence?
3.  Make sure you object - with descriptions of what is depicted, whether it is animated, perhaps the time it is taking, what effects are being used, the jury's reaction, and why it is more prejudicial than probative - inflaming passions of jury?  Mischaracterizing the evidence?  Inaccurately depicting it?
4.  Make sure the Powerpoint is marked and preserved.  
5.  What kind of instruction can you request if the Powerpoint went over the line?  Ask the Judge to have the jury disregard?  Remind them they are not to decide the case based on emotion, but instead the law and facts?  Does it warrant a mistrial if it's part of a pattern of prosecutorial misconduct?

Justice Rivera goes on to note:

With the ever increasing use of technology and ease with which evidence may be presented, even with minimal computer resources, we must be mindful of the impact of technology on events in the courtroom, and, most especially, on the criminal justice system. It is easy to view the use of certain technological devices in the courtroom as merely another way of presenting evidence. We cannot forget, however, that technology also serves as a powerful tool to communicate images and concepts in ways that engage the jury distinctly, and perhaps more effectively, than the spoken word. This is no less true during summation, when “any argument that drones on for 5 or 10 minutes on any one point, regardless of how effective its content is, will lose the jury” (Thomas A. Mauet, Trial Techniques 394 [8th ed 2010]). Visual aids are a welcome relief since “[b]y the end of the trial, jurors are looking for new and fresh ways of receiving evidence and arguments” (id.). The use of technology at the end of closing argument may be particularly powerful. As one commentator has noted, “[t]he right to the final word has a psychological impact that makes it a forensic prize” (Siegel, NY Prac § 397 at 692 [5th ed 2011]). 

The Court of Appeals Addresses The Use of Powerpoint in Summation

by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

In People v. Cheryl Santiago, 2014 N.Y. Slip Op. 01261 (2/25/14)  the Court of Appeals  addressed several issues, including sufficiency of the corroboration of defendant's confession, admissibility of letters (with sexual content) written by the defendant to another inmate who testified about alleged admissions she made to him and the use of a Powerpoint presentation by the prosecution during summation. The defendant had been convicted of murder in the second degree following the suffocation death of her toddler stepdaughter.  

The Powerpoint issue is what caught my attention.  What is the place of Powerpoint in a summation or trial?  I haven't caught up with the technology in my trial practice, but this is certainly an area where we will have to become fluent.  What if the slides use words?  Are they demonstrative evidence that still have to be marked?  How does one do that?  What happens when you have parts of a Powerpoint that are animated?  How is that reflected in the transcript?

In Santiago, the Powerpoint took the same period of time that supposedly passed during the child's suffocation.  Postmortem slides of the child in the Powerpoint were displayed on the screen, introduced by the prosecutor, "[I]f there's any question in your mind how long six minutes take, take a look at this."   The slides showed a postmortem photo (or photos), changing at regular intervals, each successive slide fading, until the last one was white.  Some had captions:  "'one and a half to two minutes, struggle ends, and 'four minutes, brain death occurs..."

Here's what the Court wrote, in holding that the issues involving the Powerpoint were not preserved for review,:

In summation, 'counsel is to be afforded 'the widest latitude by way of comment, denunciation or appeal in advocating his cause' '(cites omitted), though within limits that are principally those of relevance (cite omitted).  Had defense counsel objected, the trial court would have had the opportunity to decide whether the challenged aspect of the Powerpoint presentation constituted 'a fair comment on the evidence' or was instead 'totally irrelevant to any legitimate issue presented at the trial (cites omitted)."  The Court stated that "[w]hether the trial court would have been required by the law to sustain an objection to the entirety of the Powerpoint presentation is not clear from this record...The slides depicting an already admitted photograph with captions accurately tracking prior medical testimony, might reasonably be regarded as relevant and fair, albeit dramatic, commentary on the medical evidence, and not simply an appeal to the jury's emotions....On the other hand, the relevance of the visual device whereby the postmortem picture faded at 30 second intervals over a six-minute period - with each slide fading more and more to white, and the final slide appearing totally white - is difficult to discern.  This did not show how Justice's death occurred nor would it have aided the jury in its fact-finding function

Justice Rivera's dissent provides some guidance on the objection to make regarding Powerpoint presentations:

Defense counsel's failure to object to the prosecutor's use during summation of a Powerpoint presentation that manipulated the evidence, and was designed to inflame the passion of the jury in order to engender prejudice against the defendant, constitutes an error of the type that so tainted the jury's deliberative process as to deny defendant a fair trial.

Judge Rivera continued:

We have admonished that the prosecutor's summation 'should not seek to lead the jury away from the issues by drawing irrelevant and inflammatory conclusions which have a  decided tendency to prejudice the jury against the defendant (cites omitted).  Where a prosecutor's summation 'venture[s] well beyond the evidence and the bounds of fair comment,' a defendant is deprived of a fair trial (cites omitted)....Summation 'must stay within 'the four corners of the evidence'...and avoid irrelevant comments which have no bearing on any legitimate issue in the case (cites omitted)..

The dissent contains a great discussion of what is permissible in a prosecutor's summation.

So if there is a Powerpoint used during summation, consider the following:
1.  Is it accurate in its depiction of an aspect of the case?  (Justice Rivera noted the disappearing corpse did not accurately reflect the appearance of the child during that six minutes.)
2.  Is its emphasis to inflame the passion of the jury, rather than review the evidence?
3.  Make sure you object - with descriptions of what is depicted, whether it is animated, perhaps the time it is taking, what effects are being used, the jury's reaction, and why it is more prejudicial than probative - inflaming passions of jury?  Mischaracterizing the evidence?  Inaccurately depicting it?
4.  Make sure the Powerpoint is marked and preserved.  
5.  What kind of instruction can you request if the Powerpoint went over the line?  Ask the Judge to have the jury disregard?  Remind them they are not to decide the case based on emotion, but instead the law and facts?  Does it warrant a mistrial if it's part of a pattern of prosecutorial misconduct?

Justice Rivera goes on to note:

With the ever increasing use of technology and ease with which evidence may be presented, even with minimal computer resources, we must be mindful of the impact of technology on events in the courtroom, and, most especially, on the criminal justice system. It is easy to view the use of certain technological devices in the courtroom as merely another way of presenting evidence. We cannot forget, however, that technology also serves as a powerful tool to communicate images and concepts in ways that engage the jury distinctly, and perhaps more effectively, than the spoken word. This is no less true during summation, when “any argument that drones on for 5 or 10 minutes on any one point, regardless of how effective its content is, will lose the jury” (Thomas A. Mauet, Trial Techniques 394 [8th ed 2010]). Visual aids are a welcome relief since “[b]y the end of the trial, jurors are looking for new and fresh ways of receiving evidence and arguments” (id.). The use of technology at the end of closing argument may be particularly powerful. As one commentator has noted, “[t]he right to the final word has a psychological impact that makes it a forensic prize” (Siegel, NY Prac § 397 at 692 [5th ed 2011]). 

by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

In People v. McCray, 2014 NY Slip Op 02970 (5/1/14), the Court of Appeals considered the extent to which a defendant is entitled to the mental health records of a complainant in a rape case.  The Court of Appeals upheld the lower court's limited disclosure of the mental health records of the complainant.   In the Third Department's decision the Court stated:

Here, defendant requested all of the victim's mental health records, based on the disclosure by the People that the victim has a history of mental illness, had been the victim of sexual abuse on at least three prior occasions and had attempted suicide in the months leading up to the trial.

Under these circumstances, County Court appropriately conducted an in camera review of the victim's records and partially granted defendant's request by turning over those records that the court found were pertinent to the case.

People v. Terence McCray, 102 A.D.3d 1000, 1005, 958 N.Y.S.2d 511, 518 (2013) aff'd sub nom. People v. McCray, 40, 2014 WL 1697020 (N.Y. May 1, 2014)

Check that out - the prosecutor disclosed the prior claims of sexual abuse, the suicide attempt and the history of mental illness to the defense!  According to the Court of Appeals decision, the defense requested that the prosecution provide the defense with all of the mental health  (MH) records of the complainant.  Without specifically stating the prosecution obtained the records, the Court of Appeals decision notes that the trial court conducted an in camerareview, only releasing 28 pages.  The majority considers whether the defense was entitled to more, and concludes it was not.  But the fact that the Court considered whether it should be 28 or more, rather than whether the 28 pages were a gift, is pretty significant.  This is the type of material defendants are entitled to but routinely denied.  

This decision is useful for a few reasons.  First, it recognizes that this information was Brady  material.  In concluding most of the records were cumulative, the Court did consider one aspect that was not cumulative- prior complaints of sexual abuse, but held that the trial court did not abuse its discretion in failing to turn that over.  

Also, the Court's holding that the complainant's 2004 accusation was far removed in time and quite different from the accusation she made in 2009 can be helpful to defendants.  Applying that logic, when a defendant is alleged to have engaged in some act the prosecution seeks to offer as Molineux, defense counsel should similarly be able to argued that five years is too "far removed in time?"   

And Judge Rivera's dissent is a wonderful guide on how to argue for MH records of a complainant, focusing on the state right to confront and cross examine, what constitutes cumulativeness (or is that cumulativity?) and the constitutional underpinnings of this area of law.  Definitely worth a read, and filing away for the next time you're seeking these records.

by

Jill Paperno, author of

Representing the Accused: A Practical Guide to Criminal Defense

In People v. McCray, 2014 NY Slip Op 02970 (5/1/14), the Court of Appeals considered the extent to which a defendant is entitled to the mental health records of a complainant in a rape case.  The Court of Appeals upheld the lower court's limited disclosure of the mental health records of the complainant.   In the Third Department's decision the Court stated:

Here, defendant requested all of the victim's mental health records, based on the disclosure by the People that the victim has a history of mental illness, had been the victim of sexual abuse on at least three prior occasions and had attempted suicide in the months leading up to the trial.

Under these circumstances, County Court appropriately conducted an in camera review of the victim's records and partially granted defendant's request by turning over those records that the court found were pertinent to the case.

People v. Terence McCray, 102 A.D.3d 1000, 1005, 958 N.Y.S.2d 511, 518 (2013) aff'd sub nom. People v. McCray, 40, 2014 WL 1697020 (N.Y. May 1, 2014)

Check that out - the prosecutor disclosed the prior claims of sexual abuse, the suicide attempt and the history of mental illness to the defense!  According to the Court of Appeals decision, the defense requested that the prosecution provide the defense with all of the mental health  (MH) records of the complainant.  Without specifically stating the prosecution obtained the records, the Court of Appeals decision notes that the trial court conducted an in camera review, only releasing 28 pages.  The majority considers whether the defense was entitled to more, and concludes it was not.  But the fact that the Court considered whether it should be 28 or more, rather than whether the 28 pages were a gift, is pretty significant.  This is the type of material defendants are entitled to but routinely denied.  

This decision is useful for a few reasons.  First, it recognizes that this information was Brady  material.  In concluding most of the records were cumulative, the Court did consider one aspect that was not cumulative- prior complaints of sexual abuse, but held that the trial court did not abuse its discretion in failing to turn that over.  

Also, the Court's holding that the complainant's 2004 accusation was far removed in time and quite different from the accusation she made in 2009 can be helpful to defendants.  Applying that logic, when a defendant is alleged to have engaged in some act the prosecution seeks to offer as Molineux, defense counsel should similarly be able to argued that five years is too "far removed in time?"   

And Judge Rivera's dissent is a wonderful guide on how to argue for MH records of a complainant, focusing on the state right to confront and cross examine, what constitutes cumulativeness (or is that cumulativity?) and the constitutional underpinnings of this area of law.  Definitely worth a read, and filing away for the next time you're seeking these records.

 by
Jill Paperno,
author of Representing the Accused: A Practical Guide to Criminal Defense

As you know, sometimes prosecutors offer depositions of witnesses at preliminary hearings.  The types of information permitted by deposition are the same as what is permitted before the Grand Jury, and is set forth in CPL 190.30(3), and incorporated by reference into the preliminary hearing statute in 180.60(8).  But as two PDs appearing in City Court recently observed, a court does not have to automatically accept the deposition.  CPL 180.60(8) states that a deposition is admissible "unless the court determines, upon application of the defendant, that such hearsay evidence is, under the particular circumstances of the case, not sufficiently reliable, in which case the court shall require that the witness testify in person and be subject to cross-examination."

So a defense attorney can challenge the deposition if the other testimony seems to support a conclusion that the evidence contained in the deposition is not sufficiently reliable - for example, if it contradicts other evidence in the case, or is premised on questionable facts.  

And you may also wish to challenge the statement if it does not comport with the technical requirement of CPL 190.30 that it be under oath.  What is "under oath"?  For a discussion, take a look at People v. Penaflorida, which reviews the requirements of an oath:

An affidavit consists of several formal parts, the title, the venue, the formal opening, the signature of the affiant, and the jurat, as well as the statement of facts to be sworn to. The document here contains the title, the venue, the formal opening, and is signed by the affiant. It says the affiant was duly sworn and deposes and says the state facts. An unsworn declaration neither made under penalty of perjury nor stating that the document is true, is not an “affidavit.” Lamberti v. U.S., 22 F.Supp.2d 60 [S.D.N.Y. 1998], aff'd, 201 F.3d 430, 1999 WL 1212654 [2d Cir.1999]. The jurat is defined by Penal Law § 210.00(7) as a clause wherein an attesting officer certifies, among other things, that the subscriber has appeared before him or her and sworn to the truth of the contents. It is simply evidence of the fact that the oath was properly taken before a duly authorized officer. Here, the jurat is defective since: (1) it is not made by a duly authorized officer, &; (2) the name of the person before whom it was sworn is not printed beneath the signature. CPLR § 2101(a).

The oath requirement could have been met by using the form of an affirmation—“X”, being duly licensed to practice medicine in this state affirms the following under the penalties of perjury” or a properly executed affidavit taken before an authorized officer, or containing the language under Penal Law § 210.45—a written instrument bearing a notice to the effect that false statements made therein are punishable by penalties of perjury. This document does not qualify as any of those.

People v. Penaflorida, 34 Misc. 3d 420, 425, 932 N.Y.S.2d 682, 686 (Civ. Ct. 2011)

 by
Jill Paperno,
author of Representing the Accused: A Practical Guide to Criminal Defense

As you know, sometimes prosecutors offer depositions of witnesses at preliminary hearings.  The types of information permitted by deposition are the same as what is permitted before the Grand Jury, and is set forth in CPL 190.30(3), and incorporated by reference into the preliminary hearing statute in 180.60(8).  But as two PDs appearing in City Court recently observed, a court does not have to automatically accept the deposition.  CPL 180.60(8) states that a deposition is admissible "unless the court determines, upon application of the defendant, that such hearsay evidence is, under the particular circumstances of the case, not sufficiently reliable, in which case the court shall require that the witness testify in person and be subject to cross-examination."

So a defense attorney can challenge the deposition if the other testimony seems to support a conclusion that the evidence contained in the deposition is not sufficiently reliable - for example, if it contradicts other evidence in the case, or is premised on questionable facts.  

And you may also wish to challenge the statement if it does not comport with the technical requirement of CPL 190.30 that it be under oath.  What is "under oath"?  For a discussion, take a look at People v. Penaflorida, which reviews the requirements of an oath:

An affidavit consists of several formal parts, the title, the venue, the formal opening, the signature of the affiant, and the jurat, as well as the statement of facts to be sworn to. The document here contains the title, the venue, the formal opening, and is signed by the affiant. It says the affiant was duly sworn and deposes and says the state facts. An unsworn declaration neither made under penalty of perjury nor stating that the document is true, is not an “affidavit.” Lamberti v. U.S., 22 F.Supp.2d 60 [S.D.N.Y. 1998], aff'd, 201 F.3d 430, 1999 WL 1212654 [2d Cir.1999]. The jurat is defined by Penal Law § 210.00(7) as a clause wherein an attesting officer certifies, among other things, that the subscriber has appeared before him or her and sworn to the truth of the contents. It is simply evidence of the fact that the oath was properly taken before a duly authorized officer. Here, the jurat is defective since: (1) it is not made by a duly authorized officer, &; (2) the name of the person before whom it was sworn is not printed beneath the signature. CPLR § 2101(a).

The oath requirement could have been met by using the form of an affirmation—“X”, being duly licensed to practice medicine in this state affirms the following under the penalties of perjury” or a properly executed affidavit taken before an authorized officer, or containing the language under Penal Law § 210.45—a written instrument bearing a notice to the effect that false statements made therein are punishable by penalties of perjury. This document does not qualify as any of those.

People v. Penaflorida, 34 Misc. 3d 420, 425, 932 N.Y.S.2d 682, 686 (Civ. Ct. 2011)