Was an Upstate Prosecutor’s PowerPoint Presentation Too Emotional for Trial?


In 2008, Cheryl Santiago, stood trial, accused of suffocating her 22-month step-daughter to death. During closing arguments, the Dutchess County prosecutor showed the jury a PowerPoint presentation. It ran six minutes–the length of time it would have taken to suffocate the baby, according to a doctor’s testimony. During those six minutes, jurors saw a series of slides, each showing the same photo of the child’s dead body, each faded a bit more than the last until the final slide was completely white. Santiago’s defense lawyer did not object. The jury found her guilty of second degree murder and the judge sentenced her to 22-years-to-life in prison.

But was the PowerPoint too emotional for a courtroom?


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The question reached the state’s highest court recently. As part of her appeal, Santiago claimed that she received ineffective legal representation, citing her lawyer’s inaction during the PowerPoint. On Tuesday, the New York Court of Appeals released its decision, a 5-2 split.

Judge Eugene Pigott wrote the opinion upholding the conviction and Judge Jenny Rivera wrote the opinion siding with Santiago. Their disagreement ultimately hinged on whether the use of PowerPoint was so unfair that the defense attorney violated professional standards by not objecting.

“The prosecutor’s use of this PowerPoint imagery was an impermissible attempt to secure a verdict based on emotion and repulsion for the defendant, rather than facts,” wrote Rivera. “Although this exercise in adversarial oratory need not be dispassionate in delivery, and counsel may choose to employ various linguistic and rhetorical devices, the prosecutor cannot redirect the fact-finder’s deliberative process from the evidence by playing on emotion.”

To Pigott, however, the presentation did not elicit an arbitrary emotional plea, but instead sought to make an argument based on evidence:

“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,” he wrote. “The jury was being asked to decide not only whether defendant killed Justice, but also whether she intended to do so, an issue to which the question of how long she would have had to cover Justice’s mouth and nose was certainly relevant.”

Next: Santiago’s crime and the court’s ruling.


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Santiago had apparently confessed to the crime twice. Once while in police custody, and again in a love letter she wrote to another inmate while awaiting trial. Her husband at the time of the crime, Santos Santiago, whom she married in January 2007, testified that the couple had gotten into an argument the night before the baby’s death in October 2007. They argued over Cheryl Santiago’s “perception that the child’s presence interfered with their married life.” Cheryl put the girl, Justice, to bed that night.

The court summarized what followed:

Just after 5 a.m. the next morning, Santos awoke. He glanced over at the child as he prepared to leave the apartment, but saw nothing untoward. Santos noticed one unusual thing, however; unlike on other mornings, defendant got up to say goodbye to him and, when he left, double-locked the door behind him.

About 30 seconds after Santos left, he received a call from defendant on his cell phone, telling him Justice was not moving. Santos rushed back to the apartment, where he found his daughter’s lifeless body; rigor mortis had set in. A plastic bag lay near the child. Defendant told a grief-stricken Santos that she had removed the plastic bag from Justice’s hands. Santos called 911. An EMT arrived and confirmed that Justice was dead.

A day later, Cheryl made a confession:

She told an investigator that the previous night she had become “frustrated” because she wanted the child to go to sleep, and placed her hands over the child’s mouth and nose for about 30 seconds, “to quiet her.” Defendant said that Justice had not struggled and she thought the child had fallen asleep. The next morning, according to defendant’s account, she checked on the child, found her cold and stiff, and panicked; she grabbed a plastic bag and placed it under the child’s mouth to make it appear that the bag had smothered her during the night.

Dr. Dennis Chute, Deputy Medical Examiner of Dutchess County, testified, however, that it would take four-to-six minutes to suffocate a baby Justice’s size and age.

Four years after Santiago was found guilty of second-degree murder, an appellate court reduced the conviction to second-degree manslaughter, concluding that the evidence “does not prove beyond a reasonable doubt that it was her conscious objective to kill the infant victim.” She received a five-to-fifteen year prison sentence. The court rejected her ineffective counsel claim, though.

Rivera suggested that judges may be underestimating the impact a PowerPoint can bring in a courtroom. By the time jurors hear closing arguments, they’ve sat through days and days of testimony. Visual summations, which are increasingly popular among trial lawyers, can sometimes capture a juror’s mind more effectively than traditional oratory.

“It is easy to view the use of certain technological devices in the courtroom as merely another way of presenting evidence,” she wrote. “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.”

The presentation in Santiago’s case, Rivera argued, “manipulated the evidence, and was designed to inflame the passion of the jury in order to engender prejudice against the defendant”

Her lawyer’s failure to object was “an error of the type that so tainted the jury’s deliberative process as to deny defendant a fair trial.

The standard for proving ineffective counsel, however, is hard to reach. Pigott acknowledged that the PowerPoint may have been inadmissible and that the trial judge may have suppressed the presentation if the defense lawyer objected. But, he concluded, the objection to the presentation “is not so clear-cut or dispositive an argument that its omission amounted to ineffective assistance of counsel.”

Chief Judge Jonathan Lippman agreed with Rivera and the other four agreed with Pigott. The five-judge majority upheld Santiago’s manslaughter conviction.

Next: the text of the court’s decision.


CoA Cheryl Santiago Decision by asamahavv