Today, it is rare for a trial to take place without the use of PowerPoint presentations. They most often appear during opening statement, the examination of experts, and closing argument. So let’s suppose that opposing counsel puts up a PowerPoint with highly prejudicial images or misrepresentations about your client. Of course you object. The court sustains your objection, orders the particular slides removed, instructs the jury accordingly, but denies your motion for a mistrial. Thereafter, you suffer an adverse verdict. You have done what you need to pursue this issue on appeal, right? Wrong.
If you plan to raise the use of the PowerPoint as an issue on appeal, you better make sure the digital slideshow is put into the record. Failure to do so may result in waiver.
An illustration of this is presented in State v. Kalmio, 846 N.W.2d 752 (N.D. 2014). There, the State used a PowerPoint during its closing argument to display slides with images not in evidence of a gun and red circles, which the defendant argued resembled blood. The trial court denied the defendant’s motion for a mistrial, had the images removed, and instructed the jury to disregard them.
On appeal, the defendant raised the issue of the prosecutor’s use of the slides to stir...
