PowerPoint in the courtroom
They used PowerPoint presentations during the impeachment hearings this week, and there was one thing I noticed. The senior citizens kept on calling them “Power presentations.” No, that wasn’t a Freudian slip. It showed merely their unfamiliarity with modern-day contraptions called computers.
Indeed, during Wednesday’s hearing, the digital gap reared its head again. First, when chief defense counsel Serafin Cuevas asked for passbooks to confirm bank transactions, and Ombudsman Conchita Carpio Morales had to remind him that passbooks are now largely passé because there are electronic records instead. And second, when the defense went to great lengths to explain why it needed soft copies of the PowerPoint, and it took Sen. Francis Pangilinan—from the younger side of the generational divide—to explain that the electronic copies featured color-coded charts that became black and white in the printouts. (Also, it’s obviously easier for a team of lawyers to transmit and share electronic files rather than paper, and to read them off high-resolution computer screens rather than from deteriorated photocopies.)
The law has yet to catch up with the use of PowerPoint (hereinafter, PP) in court proceedings, and that is why PPs are allowed only by way of exception. The rules assume that a witness gives testimony in a question-and-answer format. Justice Cuevas rightly asked: How can counsel pose objections when the witness simply makes a continuous narration? The traditional practitioners say this deprives them of the chance to test the witness’ truthfulness by forcing him to deviate from the script orchestrated and rehearsed by counsel. The response is that the witness’ credibility is still tested in cross-examination.
The closest equivalent to the PP slide show is the affidavit submitted in lieu of direct examination. Instead the witness basically tells his story in a sworn statement, and on which he is then cross-examined by opposing counsel. This streamlines and hastens the proceedings. Until recently this was limited to administrative proceedings. Recently, Family Courts have allowed the so-called “judicial affidavit.” (A retired judge asks: Why call them “judicial”? They’re just affidavits.) It contains the witness’ testimony in question-and-answer format, as it were, the direct examination transcribed even before it was performed.
The PP presentation is just like the written narrative, except that it is in vibrant technicolor and projected on screen. Its use in courtrooms actually began when then Solicitor General Agnes Devanadera, instead of making the traditional oral argument before the Supreme Court, used PowerPoint slides to help her make her case. But what transpired this week in the impeachment trial goes one step beyond that. PP wasn’t used to make legal arguments, but to make factual allegations. In the impeachment trial, the Ombudsman used PP to make the detailed and technical 17-page report of the Anti-Money Laundering Council more reader-friendly. If one wants to fit this in the traditional framework, one can say that the proof is still the AMLC report and the PP was used merely to render it more easily understood. (I suppose the defense will insist that the actual bank statements and not just the AMLC report are needed to prove the dollar accounts, and these remain under lock and key via the Supreme Court’s temporary restraining order affirming the confidentiality of foreign currency accounts.)
A New York Times article on US and Nato operations in Afghanistan spoke of how the PP briefing has come to dominate the work of military officers. Titled “We Have Met the Enemy and He Is PowerPoint,” the NYT article noted that “like an insurgency, PowerPoint has crept into the daily lives of military commanders and reached the level of near obsession.” As if to foretell our impeachment scenario, it asked: “Imagine lawyers presenting arguments before the Supreme Court in slides instead of legal briefs.”
As a professor of international law, I can’t imagine teaching the archipelagic baselines of our country without an actual map in front of the class, which I can now do easily at the click of a pointer. But once upon a time, either I used a big dusty map that I rolled down on the blackboard (and to think I brought that giant map rolled up as oversized luggage on a flight from The Hague), or I lectured the kids on the 12 n.m. territorial sea, the 24 n.m. contiguous zone and the 200 n.m. EEZ and simply hoped their imagination could conjure how it looked like.
A picture paints a thousand words. That we’ve known for a long time already, and yet lawyers continue to insist on a thousand words when a few PP slides would have done better. One can deprecate the use of PP in courtrooms: Sure, it is more efficient, but in the courts of law, it is justice and not speed that is the first virtue. One can just as easily reply: PP is not just about speed but about visualizing the structure of one’s argument. Stated otherwise, without PP, we are more easily trapped in conventional linear thinking, and more susceptible to miss the forest for the trees. PP presentations enable us to see the minute facts and numbers within a larger picture, and in the Ombudsman’s slide show, a colored picture.
There is the famous scene in “The Paper Chase,” where Professor Kingsfield tells the first year law students: “You come in here with a skull full of mush and you leave thinking like a lawyer.” Without the PP presentation, perhaps the AMLC report would have appeared like a skull full of mush, and it took the colored pie charts to make them make sense.
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