Fourth Circuit opines on the use of summary charts in closing argument

A panel of the Fourth Circuit including Judge Jones of the W.D. Va. affirmed the conviction of defendants in this opinion, despite arguments including error in allowing the prosecutors use of a chart describing the evidence during closing argument.

The opinion says this:

"The use of charts, placards, diagrams, and other visual aids in argument to the jury is generally permissible within the discretion of the court. See United States v. Crockett, 49 F.3d 1357, 1360-61 (8th Cir. 1995). They should not ordinarily be used without prior notice to opposing counsel, so that any objections can be determined before the visual aid is displayed to the jury. See Bower v. O’Hara, 759 F.2d 1117, 1127 (3d Cir. 1985). In the present case, the prosecutor should have advised defense counsel that she intended to use the chart in her closing. Nevertheless, the display of the chart did not constitute plain error, if error at all. The trial judge instructed the jury generally that it was their recollection of the evidence, and not that of the attorneys, that controlled (J.A. 798) and further specifically advised the jury, when it raised a question about the chart, that it was not evidence. There is no indication that the defendants were unfairly prejudiced by the use of the chart in the prosecutor’s argument and we do not find in its use a ground for reversal."