This is a paper delivered to the International Criminal Law Congress in October 2014. It suggests that the truth or fact finding process of the criminal trial can be enhanced by greater use of technology and the abandonment of rituals and symbols that do not add to the pursuit of accurate information. In particular, the necessity for physical presence is no longer necessary, it is argued, because technology allows for "virtual" presence of all the players.
This is a paper delivered to the International Criminal Law Congress in October 2014. It suggests that the truth or fact finding process of the criminal trial can be enhanced by greater use of technology and the abandonment of rituals and symbols that do not add to the pursuit of accurate information. In particular, the necessity for physical presence is no longer necessary, it is argued, because technology allows for "virtual" presence of all the players.
This is a paper delivered to the International Criminal Law Congress in October 2014. It suggests that the truth or fact finding process of the criminal trial can be enhanced by greater use of technology and the abandonment of rituals and symbols that do not add to the pursuit of accurate information. In particular, the necessity for physical presence is no longer necessary, it is argued, because technology allows for "virtual" presence of all the players.
Judge David J. Harvey District Court, Auckland, New Zealand
'Let the jury consider their verdict,' the King said, for about the twentieth time that day. 'No, no!' said the Queen. 'Sentence firstverdict afterwards.' 1
Judges must be astute to the danger of overloading and thus of diverting the jury from its essential role of applying its collective wisdom, knowledge and judgment to the evidence it has heard. 2
Lt. Kaffee: I want the truth! Col. Jessup: You cant handle the truth! 3
Introduction Legal Practice and Legal Process as Information Exchange It has been said that the only asset that a lawyer has is time. This comment probably originated to justify time costing, a practice which, over the years, has become highly contestable. But I would dispute the assertion. A lawyers stock in trade is not time but it is information. The law is no more and no less than an information acquiring, processing and sharing occupation. The law in itself is information that limits or allows certain activities. So that a lawyer may properly advise his client there is an information flow from client to lawyer. The lawyer may then be required to look up the law in which case there is an information flow from the source of law, be it legislation or cases, to the lawyer. The lawyer then communicates the information to the client thus the original information flow is reversed. On the basis of the information (advice) received by the client, the client may make a choice as to the course of action that he or she follows. Likewise Court proceedings are all about information. Information takes certain forms, be it by way of pleadings which inform the Court what the dispute is about, evidence which informs the Court as to the strength of the assertions contained in the pleadings, submissions by which the Court is informed as to the possible approaches that it may adopt in determining the outcome, and from the Court to the lawyers and the parties when it delivers a decision. In the course of processing the decision the Judge or Judges will embark upon their own information acquisition activities, looking up the law, checking the assertions or alternatively having recourse to an internal information exchange involving Judges Clerks. In some way shape or form this information exchange process has been a fundamental reality of the practise of law over the centuries.
1 Lewis Carroll Alices Adventures in Wonderland 2 R v Singh et al [2014] NZCA 306 at [30] 3 Aaron Sorkin A Few Good Men 2
Students of legal history will be well aware of the historical development of the fact-finding process from its earliest day when jurors were self-informing witnesses, to the jury drawn from the community informed by witnesses. In our present system juries and judges objectively assess evidence in all its various forms, by way of oral testimony, documentary evidence, real evidence such as blood stains, evidence of chemical analysis, expert evidence and the like. In some unusual cases, the weight of evidence is so strong that the finding of facts and the outcome of the case is inevitable. In many other cases the evidence may be circumstantial or may require the fact-finder to draw inferences in reaching a conclusion as to what the facts at issue actually are. In many cases, regrettably, considerable reliance must be placed on that imperfect recording device the human memory. The judicial fact-finding process is not infallible, nor is it likely ever to be so; however, it is incumbent upon all participants to consider ways in which the process may be improved. What does a fact-finder rely upon in arriving at a conclusion? The lawyers immediate answer would be evidence, but the answer is simpler than that and consists, like evidence, of one word information. Information is that which informs. It is what underpins evidence. Perhaps the word evidence is used as a holdover from the days when the nature of the empirical reasoning process held sway. Substitute the word information for that of evidence and it is suggested that the same result is reached. Like evidence, information must be reliable. There are different qualities of information depending upon the source. Few would dispute that the higher the quality of information placed before a fact-finder, the more likely it is that the decision will be correct and of a proportionately higher quality.
I suggest that a court is not only a place of adjudication, but also an information hub. Information is assembled, sorted and brought to the courtroom for presentation. Once presented, various theories of interpretation are put before the fact-finder, who then analyses the data according to prescribed rules, and determines a verdict and result. That result, often with collateral consequences, is then transmitted throughout the legal system as required either by law reports, academic comment or on-line legal information systems. The court is thus the centre of a complex system of information exchange and management. 4
An enormous amount of value is placed upon the giving of oral evidence in a courtroom. Indeed this is the primary means by which information that informs the factfinder is conveyed. For reasons which I shall develop, the focus of attention upon the Courtroom and upon the physical presence of human witnesses is misplaced as the primary and most effective means of information gathering. Yet to tamper with this aspect of the criminal trial results in outraged howls, especially from that most conservative of the lawyer classes the criminal defence bar. What is advanced in defence of the system are a number of myths or constructed justifications about the importance of presence and evidence giving almost as holy writ Some of these constructed justifications include
4 F Lederer The Courtroom as a Stop on the Information Superhighway (1997) 4 Aust Jnl L Reform 71. 3
- The confrontation right a reaction to secret informers and unidentified accusers that developed from the Continental system, the Inquisition and was associated with Star Chamber in the English Experience - The importance of cross-examination and testing the oral evidence - The demeanour of the witness as a guide to truth-telling or reliability Does the twenty-first century offer alternative ways of putting information before a fact finder or enabling a more effective criminal justice process? This paper will examine some alternatives that will preserve the essence of the adversarial trial but which will enhance the communication of the information necessary for a proper decision by the fact finder.
Part A Aspects of the Criminal Trial Process The criminal trial process has evolved from a disputation between parties 5 to the adversarial system we have today. It was idealised 6 and misused. 7 But the shape of the criminal trial and its processes are little changed from the nineteenth century, the last major innovation being that the accused could give evidence on his own behalf. So what is the process all about? Gary Goodpaster describes it as follows: "Facts" are "proven" dialectically through a complex process of persuasion. This process takes the general form of a dramatic contest aimed at shaping two mutually inconsistent interpretations of common data. A decision-maker, paradigmatically a jury composed of non-legally trained lay persons, assesses the stories presented to it and assigns criminal liability. The parties, almost always acting through attorneys, control and manage the presentation of evidence-the materials from which "facts" are constructed. The parties and their attorneys are also attitudinally and ethically committed to winning the contest rather than to some other goal, such as discovery of truth or fairness to the opposing side.
The parties have significantly unequal mutual disclosure obligations. The prosecution must present its story first, thus permitting the defense an opportunity to assess the competing story and to adjust its own story accordingly. The prosecution does not have the power to force the defending party to testify and thereby provide the prosecution with material for its story. Additionally, the prosecution must satisfy an extraordinarily high burden of proof-beyond a reasonable doubt-in order to prevail. Complex evidentiary rules govern the material that may be incorporated into the parties' stories and the inferences the decision-maker should draw from the material. Complicated legal instructions are presented to the jury in order to focus and limit its decisional discretion. 8
5 John H. Langbein The Origins of the Adversary Criminal Trial (Oxford University Press, Oxford 2003) 6 William Blackstone Commentaries on the Laws of England Book 4 Chapter 27 V. http://www.lonang.com/exlibris/blackstone/bla-427.htm (last accessed 26 June 2014) 7 Kenneth R. Johnston Unusual Suspects: Pitts Reign of Alarm and the Lost Generation of the 1790s. (Oxford University Press, Oxford, 2013) 8 Gary Goodpaster On the Theory of American Adversary Criminal Trial (1987) 78 Jnl of Criminal Law and Criminology 118, 120 121 4
This somewhat cynical description of the trial process emphasises some underlying problems that lie within the adversarial system. If we assume that the adversarial system is to stand, some method of realigning the way in which information is presented to the fact- finder should be devised. In the past, there has been considerable, if not total, reliance upon the oral nature of the criminal trial. Although the dramatic flair of a Marshall Hall or a Clarence Darrow is no longer in vogue, there is little doubt that oral persuasion plays a large part in the way in which approaches to information adduced during the trial (evidence) may be used to determine what the facts are.
This is a very fuzzy and inaccurate method of assessing the facts, relying more on interpretation than upon objective analysis. If we seek a cause for this problem it lies within the emphasis upon orality as a means of putting information before the jury (adducing evidence). Predominantly information comes ex ore and is therefore prone to a number of random factors which can impinge upon the way that the information is conveyed which, in turn, has an impact upon how the fact-finder assesses that information in the determination of a fact.
One of the most common assumptions that underlies the adversarial criminal trial is that, as opposed to scientific matters, in the resolution of matters involving human issues adversarialism is the best truth-finding system that can be devised. This view is based on the claim that [t]ruth is best discovered by powerful statements on both sides of a question. 9
It is doubtful that many people think that an adversary contest is the best way to discover what actually happened. Neither scientists, engineers, historians nor scholars from any other discipline use bi-polar adversary trials to determine facts. 10 Indeed John H. Langbein suggests that in the Anglo-American criminal trial the job of each adversary is to win a courtroom struggle which could and does entail tactics that distort or withhold the truth such as the concealment of witnesses or withholding information that may assist the other side. 11
The Criminal Trial as Ritual It may be observed from the quotation from Goodpater above that the adversarial process is accompanied with a considerable amount of ritual, much of which creates an aura of mysticism, clothing the professional players such as the judge and the lawyers with an esoteric knowledge and understanding of the process that seems arcane. In a curiously circular manner this focus upon arcana reinforces ritualism. Nevertheless rituals play an important part in community life. Law remains today one of the most ritualized functions of social life. 12 One need only visit a courtroom or read a judgment to find a very special and often repetitive style.
9 Ibid. at 121. 10 Ibid. at 122. 11 John H Langbein The Origins of the Adversary Criminal Trial above n. 5 p. 1. 12 Claude Gauvard and Robert Jacob, Le rite, la justice et lhistorien in Claude Gauvard and Robert Jacob (Eds.), Les rites de la justice, (Le Lopard dOr ,Paris, 1999), p. 9 5
The belief systems that validate legal rituals are transmitted to each member of society through such means as formal education systems, media, authoritative pronouncements and word of mouth. A cultural belief system allows us to attach meaning to symbolic representations that appear in culturally determined contexts. Thus, the imagery of the courtroom the dignity of the proceedings, the impartiality of the judge, the adversarial posture of the litigants and the juxtaposition of symbols of authority the coat of arms, the black robes, police uniforms all communicate culturally determined meaning. 13
Criminal trials are an important representation of social rituals that solidify community values in two ways. The trial defines the community by deciding what is and is not acceptable by deciding an accuseds guilt or innocence. Those who are found guilty may be excluded from the community for a defined period of time or, in the case of the death penalty, permanently. Thus, the jury represents and defines the community by determining continued community membership.
In addition to defining the contemporary community, the criminal trial as a social ritual defines the community through time. The trial is a representation of a democratic rite connecting the present to the past and the ideals underpinning the justice system within a community. The ideals that shape and provide structure for the criminal trial invest it with a special form of ceremony, confirming it as a distinctly Anglo-American complex of concepts and ideals that define the relationship between the State and the individuals who make up the community.
Aspects of Ritual
Fig 1. High formality and imposing colour of an appellate courtroom
13 Keith B Nunn The Trial as Text: Allegory, Myth and Symbol in the Adversarial Criminal Process A Critique of the Role of Public Defender and a Proposal for Reform (1994) 32 Am Crim L Rev 743, 745-6 6
The proceedings have an intensely formalistic ritual. The judge, lawyers and court officials have their set places within their given areas. They move in accordance with a set of formal rules, starting with the judges formal entry. The judge is robed, in some jurisdictions accompanied by a bailiff or a tipstaff, and supervises the proceeding through its course which will involve a number of set stages. From the high formality of the commencement of proceedings, the participants respect each others space and use a highly ritualised language which at times resembles an arcane code. They may move from one position to another, often requiring the permission of the judge to do so. The formalistic nature of the proceedings with its emphasis upon an exaggerated politeness and the use of restrained and non-confrontational or non-argumentative language belies the adversarial contest.
The jurors those who have been called upon to decide and determine the facts are passive participants. They begin their role as a small audience and receive little direct information about the formalities of the proceedings, the structure of the trial and the limits If youre going to be logical, if youre going to use reason, and thats the justification for making a determination, for deciding this is free speech and this is protected and that is not, why do you have to wear robes Ethan Katsh The First Amendment and Technological Change: The Media Have a Message (1989) 57 Geo Wash L Rev 1459
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of their roles, other than what they may be told at a jury information meeting before selection or by the judge in his or her opening remarks. Generally, they pick up the details and particulars of their role as the trial progresses. They learn:
indirectly through the process by means of the imbedded cues of ritual, authority, space, position, place, tone and the directions and modelling of the principal actors. From time to time, the judge, in formal and unfamiliar language, instructs the jurors on how to treat various matters they see and hear. All of these impressions and overt directions teach the jurors that they are witnesses to, and ultimately judges of, a very special event. 14
Although this ritual may seem unusual, it is nevertheless important. The ritual, although carrying with it resonances from history as far back as at least the seventeenth century, originates from and creates some identifiable responses and attitudes. The ritual emphasises the solemnity, propriety, regularity and formal rightness on the event, the occasion and what is proceeding. In the broader sense
Participation in ritual is also a way of acknowledging, or accepting, membership in the community that uses the ritual. Depending on its forms, ritual may also invoke and symbolically enact some community value or ideal. Engaging in ritual both expresses and creates community; it is a way of participating, sharing, binding and confirming. 15
Goodpaster suggests 16 that the ritual elements of the adversarial criminal trial are tied up with its features of theatre and the nature of the contest. He considers that in some respects the criminal trial has elements of a kind of drama or morality play. Within the framework of trial formalities, etiquette and the rules of evidence, jurors are spectators to a show, produced and directed by the lawyers who are also the principal actors. The show is a form of competition between the parties, the outcome of which is the determination of a correct (true?) version of past events. The lawyers are on stage throughout the performance, playing their parts and gradually revealing the contesting stories of past events by bringing forward other actors to tell their story and advance the particular theory of the correct account of events.
This drama is both rehearsed and extemporaneous, the latter reflecting the dynamic nature of the information exchange that is taking place. The characters are real and, although directed, are unrehearsed. Although the trial takes place in the present, its focus is upon the past. The plot of the trial is about a contest between two different stories, the difference turning upon different alleged factual versions of the same event. The moral underpinning of the story is, from the point of view of the prosecution, the violation of a community norm of conduct. From the defence point of view there may be a number of moral underpinnings ranging from the suggestion that there was not a violation of a norm involving the accused, or alternatively the behaviour of the accused had some justification within the normative
standards of the community. From the perspective of both sets of participants the greater moral underpinning of the trial is the fairness of the process and the justice of the outcome.
Whatever specific plot surfaces in a particular trial, all trial plots have as their unstated subtext the opposition between the government and an individual. In this subtext, the government has two possible roles: the role of legitimate law enforcer and the role of oppressor of freedoms. The defendant is also cast in the ambivalent roles of a criminal, a deviant, or a potentially oppressed individual. At the conclusion of the trial, both stories, as well as the implicit subtext, are proferred in formal equipoise to the jury for judgment as to who has won the contest, accuser or accused. The jury is formally free to accept or reject either story or to compose its own story from the materials of the factual versions presented. The jury does not have to report which story it chose, but it must agree unanimously on its judgment. In effect, the jury concludes the plot of the play by either condemning the defendant or rejecting the accusation, thereby giving the drama a moral. The jury therefore expresses a communal moral judgment on the inseparable sum total of the drama it has witnessed. In reaching its judgment, the jury also reads the subtext of the drama and implicitly decides which roles the principal players occupied. 17
Criminal Trial Process as Anachronism It will be observed from the above discussion that the criminal trial ritual requires all participants to gather together in the one place. Only then can the ceremony proceed. This may reflect community interest, the gathering together of a community to consider and assess wrongdoing. Historically this reflects the norms of the tribe, the village or any other form of microcosmic community. The word Trial - The action of testing or putting to the proof the fitness, truth, strength, or other quality of anything 18 could apply as much to a scientific experiment as it may to a criminal jury trial. But the one word actually goes beyond the method of analysis contained in the OED definition, and encapsulates a host of elements. Essential is that of presence. What is it that compels the necessity for this important custom of presence. In examining this question the words of Claude Levi-Strauss must be borne in mind. The survival of a custom or a belief can in fact be explained in two ways. Either the custom or belief is a survival without any other significance than that of a historical residue spared by chance or as a result of extrinsic causes, or else it has survived because through the centuries it has continued to play a role and because this role is the same as might account for its initial appearance. An institution can be archaic because it has lost its reason for existing, or, on the contrary, because this reason for
17 Ibid. p.149. 18 Other definitions accept the word trial as undefined but the word is used within a particular context e.g. The action or fact of trying or being tried, in various senses; The examination and determination of a cause by a judicial tribunal; determination of the guilt or innocence of an accused person by a court. Hence to bring (a person or cause) to trial; to put (a person) on his trial, to stand (one's) trial, etc.; also trial by the country, trial by jury, trial by proviso; The determination of a person's guilt or innocence, or the righteousness of his cause, by a combat between the accuser and accused (trial by battle, trial by (single) combat, trial by wager of battle, trial by the sword); a combat decisive of the merits of a cause Oxford English Dictionary 2nd Ed. 1989 DVD Version. 9
existing is so fundamental that any transformation of its ways of acting has been neither possible nor necessary. 19
The issue becomes one of whether the rituals and processes of the jury trial are an historic residue or that they continue to play a role. Does what has become the physical presence trial actually require the physical presence of all the participants to achieve a proper outcome. The Confrontation Right It is at this stage that a discussion about the confrontation right becomes relevant because it provides a philosophical underpinning for the physical presence criminal trial. In New Zealand the New Zealand Bill of Rights Act provides at section 25 that a person charged with an offence in relation to the determination of the charge has a number of minimum rights, among them: (e) the right to be present at the trial and to present a defence relates to the presence of the accused but does not say physically present: (f) the right to examine the witnesses for the prosecution and to obtain the attendance and examination of witnesses for the defence under the same conditions as the prosecution suggests presence but may not be limited to physical presence:
In addition, Section 83 of the Evidence Act 2006 provides for the ordinary way in which evidence is to be given in Court. This section goes further than section 25 NZBORA and underpins the concepts of orality and physical presence. 83 Ordinary way of giving evidence (1)The ordinary way for a witness to give evidence is, (a) in a criminal or civil proceeding, orally in a courtroom in the presence of (i) the Judge or, if there is a jury, the Judge and jury; and (ii) the parties to the proceeding and their counsel; and (iii) any member of the public who wishes to be present, unless excluded by order of the Judge; or (b) in a criminal proceeding, in an affidavit filed in the court or by reading a written statement in a courtroom, if both the prosecution and the defendant consent to the giving of evidence in this form; or (c) in a civil proceeding, in an affidavit filed in the court or by reading a written statement in a courtroom, if (i) rules of court permit or require the giving of evidence in this form; or (ii) both parties consent to the giving of evidence in this form. (2) An affidavit or a written statement referred to in subsection (1)(b) or (c) may be given in evidence only if it
19 Claude Levi-Strauss The Elementary Structure of Kinship (Beacon Press, Boston 1969) p. 2.
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(a) is the personal statement of the deponent or maker; and (b) does not contain a statement that is otherwise inadmissible under this Act.
There are two major exceptions to the requirements of section 83. One lies in the provisions of section 103 et seq of the Evidence Act 2006 which provides for the manner in which evidence may be given in an alternative way. The other may be found in the provisions of the Courts Remote Participation Act 2010 (CRPA) which allow for the use of audio-visual systems to be employed to enable participants in proceedings to be virtually present. This latter Act enables significant inroads into the concept of physical participation. Section 103 et seq and the provisions of the CRPA are examples of temporal and spatial alterations to the giving of evidence and the requirement for presence and will be discussed in more detail below. In the United States the provisions of the Sixth Amendment are not as specific about participation as the provisions of the New Zealand Bill of Rights Act and the Evidence Act, but it has formed the basis for the physical presence trial in the United States. The manner of its interpretation also gives rise to some faulty premises about the historical background to the confrontation right. This erroneous foundation has permeated our thinking about the importance of the confrontation right to the point where, in New Zealand it is statutorily enshrined. The Sixth Amendment provides: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defence. What is common to both sets of provisions is presence at trial implicitly in the Sixth Amendment and expressly in section 83 of the Evidence Act 2006 and the right to examine or confront prosecution witnesses. Thus if a person is going to testify against an accused, that testimony must be offered under oath in the presence of the accused and subject to cross-examination. The historical justification for the confrontation right and its origin is debateable. Yet the confrontation right does have some modern rationale. The Modern Rationale for the Confrontation Right Richard Friedman advances seven purposes for the confrontation right 20 : 1. Openness. Confrontation guarantees openness of procedure, which among other benefits ensures that the witnesss testimony is not the product of torture or of milder forms of coercion or intimidation. This is particularly important given the contrast to early Continental systems, in which coercion of witnesses examined
20 Richard D. Friedman The Confrontation Clause Re-Rooted and Transformed 2004-05 Cato Supreme Court Review 439 442-3 11
privately was very common. One would have expected in the twenty-first century that the use of torture would have been at least an anachronism and at worst a war crime practiced by ruthless totalitarian governments and inimical to the values of Western democracies. The treatment of terror suspects following 9/11 challenges those assumptions.
2. Adversarial Procedure. Confrontation provides a chance for the defendant, personally or through counsel, to dispute and explore the weaknesses in the witnesss testimony. In an earlier day that chance came in the form of a wide-open altercation in court. Today it comes in the form of cross-examination, although the rationale for the involvement of the defence lawyers had little to do with confrontation quite the contrary.
3. Discouragement of Falsehood. Confrontation discourages falsehood as well as assisting in its detection. The prospect of testifying under oath, subject to cross- examination, in the presence of the accused makes false accusation much more difficult than it would be otherwise, or so at least is the well-settled belief. But does cross-examination require the physical presence of the witness or of counsel?
4. Demeanour as Evidence. If, as is usually the case, the confrontation occurs at trial or (in modern times) in a videotaped proceeding, the trier of fact has an opportunity to assess the demeanour of the witness. It should be noted that modern assessments of credibility rely less and less on demeanour which has largely been discounted as an indicium of truth telling.
5. Elimination of Intermediaries. Confrontation eliminates the need for intermediaries, and along with it any doubt about what the witnesss testimony is.
6. Symbolic Purposes. Beyond these instrumental purposes, confrontation of prosecution witnesses serves a strong symbolic purpose that has been recognized in the United States. Even if confrontation had no impact on the quality of the prosecutions evidence, it would be important to protect because, there is something deep in human nature that regards face-to-face confrontation between accused and accuser as essential to a fair trial in a criminal prosecution. 21 It speaks to the community abhorrence of the hidden accusation. Yet in the Twenty-first century does this require or mandate physical presence? One has to reflect on Levi- Strausss comments on ritual in considering whether this form of symbolism is mere anachronism
7. The Weight of History. The symbolic value of confrontation is enhanced by the history of the right. Indeed, the very fact that for many centuries accused persons have had the right to confront the witnesses against them makes it especially important to continue to honour that right. This, of all the purposes, is the most debateable, as this discussion demonstrate.
21 Maryland v Craig (1990) 497 US 836, 846; Coy v Iowa (1988) 487 US 1012, 1019-20; Lee v Illinois (1986) 476 US 530, 540. 12
It is important to note that there is no suggestion that the confrontation right had anything to do with the issue of whether or not testimony was reliable. It was a rule that underpinned the manner in which testimony was taken. A witness may not be heard for the prosecution unless the accused has an opportunity to be confronted by him or her the witness must speak in the presence of the accused and be subject to cross-examination. 22
Today the confrontation right is associated with the so-called adversarial process and adversarialism began with the increased role of the defence lawyers in the criminal trial. Yet there is no suggestion of the development of a confrontation right that went hand in hand with adversarialism. Indeed, the reasons for the development of the adversarial trial seem more tied up with inequality of arms and concerns about the reliability of evidence and subsequent convictions than the right of an accused to confront his accuser.
Notwithstanding the confrontation right, the trial ritual with its emphasis on orality and reliance on the testimony of individual witnesses has its problems. Although the medieval mentality may have preferred oral testimony it was then, as it is now, subject to a number of shortcomings which must be recognised.
It may well be that cross examination is the greatest engine for determining truth but it, too, is flawed and is dependent upon the forensic skills of the advocate for its effectiveness. Even then, as a truth seeking device, it falls short. There are ways in which some of the problems of oral evidence may be mitigated. This involves the use of technology and some of the solutions that I propose challenge many of the established rituals and practices of criminal trial procedure.
In light of new technologies that enhance information exchange, the justification for the physical presence trial with oral, presence based evidence-giving processes are no longer valid and indeed lack anything other than a deep atavistic basis for their continuation. Yet, some of the other important aspects of criminal trial procedure may remain including adversarialism. But the focus of adversarialism should be upon information testing.
Technology provides some of the solutions to effectively placing information before the fact-finder. However, it has been observed that technology leads to a disenchantment with and trivialisation of ritual. As we have seen ritual, particularly through its symbolic aspect, contributes to the social order. The challenge for justice in the Digital Paradigm is to re- invent rituals that are based on those of the past or adapt rituals to a new technology so that the concurrence and authority that they cast on the thing that they adorn appear consubstantial with the exercise of justice. 23
The next section will address some of those challenges in considering the greater use of technology in the criminal trial process.
22 Friedman above n. 20 at 445. 23 Karim Benyakhlef and Fabian Gelinas On-line Dispute Resolution (2005) 10 (2) Lex Electronica 13
Part B Using Technology to Improve Process I now turn to the use of technology in the trial process. But before embarking upon specific examples, there are some general matters that need to be considered, and perhaps one of the most important of these relates to the use and expectations of information by younger generations. Should the information values and expectations of a sixty-eight year old who grew up in the days before television, dictate the information uses and expectations of the digital native? Drivers for Change In the main, lawyers are slow adopters of new technologies, and the criminal defence lawyer is perhaps one of the most conservative, especially if proposals are put in place that make evidence clear and, as is often the case with technological systems, almost irrefutable. The technology is neutral. It cannot be cross-examined to the point where it acknowledges that it cannot be sure. As the US Supreme Court said in Scott v Harris 24 the technology speaks for itself. Resistance to change does the criminal trial little good. If anything it compromises its effectiveness and its credibility in the minds of the public. There are certain imperatives that are driven by technology. Those who are voting for the first time in the 2014 election in New Zealand were born in 1996. They have grown up in a world of the Internet, computers, smartphones and digital devices. They are children of the digital paradigm. They are Marc Prenskys digital natives. 25 Prensky was writing about students and their use of technology but the University students of whom he wrote in 2001 are now adults and available for jury service.
They have spent their entire lives surrounded by and using computers, videogames, digital music players, video cams, cell phones, and all the other toys and tools of the digital age. Todays average college grads have spent less than 5,000 hours of their lives reading, but over 10,000 hours playing video games (not to mention 20,000 hours watching TV). Computer games, email, the Internet, cell phones and instant messaging are integral parts of their lives
It is now clear that as a result of this ubiquitous environment and the sheer volume of their interaction with it, todays students think and process information fundamentally differently from their predecessors. These differences go far further and deeper than most educators suspect or realize. 26
24 (2007) 550 US 372. 25 Marc Prensky Digital Natives, Digital Immigrants (2001) 9 On the Horizon 1http://www.emeraldinsight.com/journals.htm?issn=1074- &121&volume=9&issue=5&articleid=1532742&show=pdf; www.marcprensky.com//prensky%20- %20digital%20natives,%20digital%20immigrants%20-%20part1.pdf (last accessed 23 February 2012). For a brief introduction the the development of Presnskys theory see Wikipedia Digital Native http://en.wikipedia.org/wiki/Digital_native (last accessed 6 August 2014); see also Sylvia Hsieh Digital Natives Change Dynamic of Jury Trials Mass Law Wkly 7 November 2010 http://www.legalnews.com/detroit/803882 (last accessed 6 August 2014). 26 Ibid. Prensky. 14
Prenskys digital natives are native speakers of the digital language of computers, video games and the Internet. Those who were not born into the digital world but have, at some later point in life, become fascinated by and adopted many or most aspects of the new technology are digital immigrants. Prensky suggests that the difference is important because, like it or not, digital immigrants speak with a different accent from digital natives. As Digital Immigrants learn like all immigrants, some better than others to adapt to their environment, they always retain, to some degree, their accent, that is, their foot in the past. The digital immigrant accent can be seen in such things as turning to the Internet for information second rather than first, or in reading the manual for a program rather than assuming that the program itself will teach us to use it. Todays older folk were socialized differently from their kids, and are now in the process of learning a new language. And a language learned later in life, scientists tell us, goes into a different part of the brain. 27
There is a third category which was not referred to by Prensky, but if I can use his language they may be classed as digital aliens those who wish to have nothing to do with the digital paradigm, who do not wish to engage with the new technology or will not do so, and who resist the changes that new technologies demand of them. This grouping is normal in the introduction of a new technology. It is part of the normal co-existence of technologies until a new technology has been universally received, and the digital natives become an overwhelming majority. 28
Lord Chief Justice Judge recognised the digital native issue and put this into the context of the jury trial when he wrote: Let me now consider my grandchildren. Not perhaps the youngest two, but the teenagers. They are technologically proficient. Much of their school work is done by absorbing information from machines. They consult and refer to the Internet. When they do so they are not listening. They do not, as we did, sit in class for 40 minutes listening to the masters and mistresses providing us with information. They are provided with information in written form, which they assimilate into their own technology. Now, what this form of education lacks is training in the ability to sit still and listen, and I emphasise, listen and think, I repeat, listen and think simultaneously, for prolonged periods. Yet that is an essential requirement for every juror. 29
27 Ibid. 28 As Steve Jobs put it when the Apple computer was first came on the market When Apple first started out, people couldnt type. We realized: Death would eventually take care of this. Wall St Journal All Things Digital Conference April 2003, San Francisco. The report of the comments is at The Mac Observer Website Steve Jobs: No Tablet, No PDA, No Cell Phone, Lots Of iPods 4 th June 2003 http://www.macobserver.com/tmo/article/Steve_Jobs_No_Tablet_No_PDA_No_Cell_Phone_Lots_Of_iPods/(last accessed 5 April 2012). 29 Rt Hon The Lord Judge Jury Trials (Judicial Studies Board Lecture, Belfast 16 November 2010) http://www.judiciary.gov.uk/media/speeches/2010/speech-by-lcj-jsb-lecture-jury-trials (last accessed 4 April 2012). 15
What is perhaps so dramatic about this passage is that His Lordship describes a trial system that depends upon orality as its focus, and perhaps what he fails to recognise is that the Digital Natives find such a means of absorbing information incompatible with the way in which their learning systems are becoming adapted as a result precisely of the technological proficiency to which His Lordship refers. The means of information gathering is radically different from that acquired, say, from a book and as Sven Birkerts observes. Information and contents do not simply move from one private space to another, but they travel along a network. Engagement is intrinsically public, taking place within a circuit of larger connectedness. The vast resources of the network are always there, potential, even if they do not impinge on the immediate communication. Electronic communication can be passive, as with television watching, or interactive, as with computers. Contents, unless they are printed out (at which point they become part of the static order of print) are felt to be evanescent. They can be changed or deleted with the stroke of a key. With visual media (television, projected graphs, highlighted bullets) impression and image take precedence over logic and concept and detail and linear sequentiality are sacrificed. The pace is rapid, driven by jump-cut increments, and the basic movement is laterally associative rather than vertically cumulative. The presentation structures the reception and, in time, the expectation about how information is organised. Further, the visual and non-visual technology in every way encourages in the user a heightened and ever-changing awareness of the present. It works against historical perception, which must depend on the inimical notions of logic and sequential succession. If the print medium exalts the word, fixing it into permanence, the electronic counterpart reduces it to a signal, a means to an end. 30
This is the information ecosystem within which the Digital Natives who are beginning to make up todays juries dwell. They have been brought up on an information rich, technologically based environment. Their expectation is that the information processing that leads to the decision of a jury will use the information gathering, presentation and analytical tools to which they have become accustomed. To expect them to do otherwise is to allow archaic systems of information exchange prevail for no other reason than ritualistic processes and this the way that it always has been done. It is time to consider a dramatic, possibly revolutionary, change. The Technology Taxonomy Professor Fred Lederer, Director of the Center for Legal and Court Technology at the College of William and Mary Law School made the following comment: Most evidence is and will be digital in nature, largely eliminating any need to show the "original" physical exhibit in evidence. Indeed, as most people are visually and data oriented, jurors and even judges will expect to see as much information as possible on screens in front of them. The trial lawyer will continue to be essential, but the underlying evidence will become even more important-and it will need to be visually presented. The advent of the smartphone with camera foreshadowed what
30 Birkerts The Gutenberg Elegies: The Fate of Reading in an Electronic Age (Faber, Winchester MA 1994) p. 122-3. 16
we think the short-term future will bring-a huge increase in recorded incident video. It's hard now to have something happen in the world without recorded video from phones and tablets. 31
Much information that is not in digital format can be digitised and information in digital form requires digital systems to present it. This involves an understanding of the classification of communications technologies. I suggest that there are five major categories of information technologies that may be used in the court process. The lines between some of these may be blurred and one technology type may in fact fulfil two or more roles within the court process. Essentially, the information technology types are: (i) communicative; (ii) evidential; (iii) presentational; (iv) preservational; and (v) analytical.
Communicative Technologies Communicative information technology refers to those technologies allowing for communication within the court, within or beyond the court building. Communicative information technology may encompass such mundane items as telephone, fax or telex and include any mail, teleconferencing and video-conferencing equipment. Using technology means that it may not be necessary for the court to adjourn for an undue length of time while counsel retrieves papers that have been left at the office, or while a witness retrieves a document that has been left at his or her place of business. In terms of pre-trial conferences and the like, place does not matter. Pre-trial conferences may be teleconferenced or video-conferenced and, indeed, communicative technologies also impinge on evidential information technology in that, of course, evidence can be video- conferenced, or given by way of video-link. Evidential Technologies Evidential information technologies fall into a number of subcategories: evidence presented to the court by way of a witness not present in the courtroom (for example, video-conferencing or remote testimony); the use of information technology to present documentary evidence (for example, as used by the Serious Fraud Office or in cases where there are a large number of documents); the use of information technology to demonstrate or explain a process; the use of information technology or computer-generated images or digital photographs for evidential illustrative purposes; and
31 Fred Lederer Some Thoughts on Technology and the Practice of Law (2014) The Bencher (a bi-monthly publication of the American Inns of Court) http://home.innsofcourt.org/for-members/current-members/the- bencher/recent-bencher-articles/januaryfebruary-2014/some-thoughts-on-technology-and-the-practice-of- law.aspx (last accessed 23 June 2014) 17
the use of information technology images for the purposes of expert evidence or for the purposes of reconstruction. Presentational Technologies Most audiences at seminars or conferences are familiar with PowerPoint or other forms of image presentation software which enhance the speech or discussion of the paper to be delivered by the speaker. Indeed, the common word that is given at conferences these days for a speaker or keynote address is presentation. Presentation material can assist in the explanation of a particular point, submission or argument. Within the context of a court case it is more likely to be used by counsel, but could also be used by an expert witness and may be used by judges while summing up to the jury. Presentation software may use words, graphics, moving images or sounds (collectively described as multi-media) to explain or enhance the point at issue. In the hands of counsel it could primarily be seen as a persuasive tool but that does not reduce the value of its utilisation as a means of information communication. Preservational Information Technologies Preservational information technologies relate to the way in which evidence may be stored or recorded as part of the trial process. New Zealand courts currently employ a digital audio evidence recording system which involves the recording and retention of an audio file in digital format from which a transcript may be made. Transcripts may be made almost instantaneously. The audio file is sent by means of a computer network system to remote transcribers. The audio file is transcribed into a written document which is then sent back to the court and either printed or made available as a word processing document. Sometimes the transcription is delayed and only made available for particular reference purposes or for the purposes of an appeal. In addition the audio file may be played back. This is particularly useful in jury trials where jurors may wish to hear the evidence as it was given rather than reading it from the transcript, copies of which are routinely made available to jurors while they are deliberating. There are a number of different types of digital audio recording systems, all operating from the same premise. Many systems use a proprietary file format which makes it difficult to exchange audio files from one software system to another. A digital information recording system now means that a video record may also be kept of court proceedings. Although videotape has been with us for some time, a significant difficulty with the medium has been the search and retrieval functions of the video record. Digital video makes such searching and retrieval much easier than before. The importance of a digital audio or video record over that of a written transcript is that an appeal or review court is able to scrutinise not only what was said and done but how it was said or done. Many lawyers will be familiar with the spin that can be placed by a judge on an otherwise innocuous direction to a jury by means of a tone of voice. This of course is not available to an appeal court on a written transcript. Traditionally, appellate courts defer to the evaluation of demeanour evidence and the findings of credibility by the trial court although the deference of appellate courts to findings of fact based on aspects of physical presence is no longer as great as it used to 18
be. 32 Video records, with their ability to present voice intonations, facial expressions and body language may abrogate the need for such deference, unless of course, deference serves interests such as finality to a greater degree than has previously been acknowledged. 33
A comprehensive multi-media record necessarily forces one to ask whether appeals might become in effect de novo appeals. It is suggested that an appellate court would feel far freer in its review if it had available nearly everything that had happened below. Preservational information technology means that an appeal court may be more properly informed of the basis of an appeal than may be apparent from a written transcript. One of the advantages of the digital environment is that storage of the record does not require as much space as a paper-based record. Preservational and archival technologies mean that bulky and difficult to store paper files can be reduced to a digital format and stored in less space. Analytical Information Technologies In general the term analytical information technologies refers to software systems which may interpret or order data. A relational database is one example. The various products that are used in the E-Discovery process provide others. The ability of digital systems to order data may be simplistically demonstrated in the ordering of information into chronological sequence based on date fields assigned to data. This could be useful in dealing, say, with cases involving the purchase of precursor substances for the manufacture of methamphetamine. A large number of transactions taking place over a significant period of time involving a large number of dates, geographical locations and chemist shops, may be sorted into chronological order demonstrating a purchase pattern based primarily on dates which is often linked to geographical locations. Thus analytical tools assist in the ordering of evidence material and to a certain degree in the analysis thereof. One of the qualities or affordances of digital information is the searchability of data. It was this quality, and its use as a form of analytical tools that underpinned the provision of all written material in digital form to the jury in the cases over which Judge Wilson QC and I presided. It seemed to us that this was the next logical step in assisting the jury in its role to consider and analyse the evidential material that had been put before them without having to resort to slippery memory or a cumbersome and unwieldy collection of documents in the form of transcripts or documentary exhibits. To compel such an archaic form of analysis when other tools were available seemed to both of us to be counter-productive and possibly more prone to error. Spatial and Temporal Technologies Within the categories of evidential and communicative technologies there are two additional categories spatial technologies and temporal technologies.
32 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 33 One study in Kentucky has suggested that when using video records the Court of Appeals is somewhat less inclined to reverse the original trial court factual determinations: JA Maher Do Video Transcripts Affect the Scope of Appellate Review? An Evaluation in the Kentucky Court of Appeals (National Center for State Courts, 1990). See http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/appellate&CISOPTR=1 (last accessed 3 June 2011). 19
Spatial technologies allow contemporaneous communication of information over a distance. The communicator may be one physical location - the recipient may be in another. Technologies that provide us with examples of this class are not new and may range from the signal fire, semaphore, telegraph and wireless to radio, television and Skype. In terms of the application of spatial technologies in the Court process, the provisions of the Courts (Remote Participation) Act 2010 is a perfect example of the use of spatial technologies. The underlying themes of the legislation is to enable participation in Court proceedings from a distance by the use of communication technologies. There are two concerning features about this legislation. The first is its underutilisation by Courts and participants. Most of the time, the Act is employed in remand hearings in criminal cases. The other is its restrictions on use in the criminal trial process. Temporal technologies are those that allow information to be gathered, collated and stored and used at a later time. Again, there are examples of temporal technologies that predate digital ICT. The written question and answer record of an interview between a Police officer and a suspect, the tape recording of such an interview, the video recording of such an interview all provide examples. Digital technologies now present us with a wider range of temporal evidence gathering and presentation techniques. One example is the use of recordings from static CCTV cameras in buildings or on city streets. Another may be found in recordings derived from body-worn cameras by police officers in London which have been the subject of a recent trial. 34 In the United States the US Supreme Court accepted the presentation of video evidence of a high-speed pursuit. Such procedure is quite uncommon in the Supreme Court and was viewed as part of an interesting relationship between the Supreme Court and technology. The video had a strong effect on the court and is viewed as a major factor in how the court made its decision. 35
The practice of using recorded interviews of the accused or of recordings of intercepted conversations either by telephone or a remote listening device are examples of temporal technologies. A mode of evidence application under s. 103 Evidence Act 2006 seeking leave for a recorded interview of the complainant to be played as evidence in chief, and for contemporaneous cross-examination to take place with the witness located in another room in the Courthouse 36 provides an example both of the use of temporal AND spatial classes of technology. This is not the place to debate the legal requirements surrounding the use of spatial or temporal technologies. Certainly there has been a certain judicial caution in allowing
34 Josh Halliday Met police trial of body-worn cameras backed by David Davis The Guardian 8 May 2014 http://www.theguardian.com/uk-news/2014/may/08/police-london-issued-body-worn-cameras (last accessed 22 June 2014). 35 Scott v Harris above n.23. The video may be found on YouTube at https://www.youtube.com/watch?v=qrVKSgRZ2GY (last accessed 22 June 2014. For a critique of Scott v Harris not as to outcome but as to reasoning see Dan M. Kahan, David A. Hoffman and Donald Braman Whose Eyes Are You Going to Believe: Scott v Harris and the perils of cognitive illiberalism (2009) Harv. LR 838. 36 Why it is necessary for the witness to be transported to the Courthouse for cross-examination when spatial technology would enable him/her to be cross-examined from any other location may be premised only on the basis that the Court may need to exercise some supervisory function over the witness, but for no other purpose. 20
temporal technologies and there remain certain issues about the use of spatial technologies where a participant is located outside the jurisdiction. 37
Maintaining the Confrontation Right Many of the obstructions to the proper evaluation of information needed by a fact-finder to arrive at a conclusion arise from practices rooted in the ritualised oral procedures of evidence giving that have surrounded the criminal jury trial. These procedures were perfectly satisfactory in an era where communication imperatives and an absence of the range of communication technologies present today mandated the physical presence participation model of the criminal jury trial. One of the justifications for the physical presence participation model was the reliance upon the confrontation right. Its role in the lawyer speaks model of the criminal trial is redundant. In reality the presence participation model was more apposite to the accused speaks trial described by Professor John Langbein 38 that preceded the involvement of the lawyers in the trial process. But whether or not the confrontation right has any validity, the fact of the matter is that it is constitutionally and statutorily mandated. It is my argument that the essential elements of the confrontation right may be maintained through the use of information technologies whilst dispensing with the inconveniences and costs of the physical presence participation model. The justification for witnesses to be physically present in the Court for examination is no longer relevant when virtual presence by means of a high definition screen can enable a better and clearer view of a witness than is possible from a jury box across a courtroom to the witness stand. The questionable value of demeanour suggests that this justification for presence is at best arguable. Indeed, some minor amendments to the CRPA would make it possible for witnesses to give evidence from remote locations and for the accused to be virtually present without compromising rights under the New Zealand Bill of Rights Act, If it is accepted that the requirement for physical presence is no longer necessary, it is nevertheless possible for elements of the confrontation right to remain. As earlier indicated, the provisions of the Courts Remote Participation Act 2010 create a significant exception to the provisions of section 83 of the Evidence Act 2006. What must be remembered is that the provisions of the CRPA involves spatial considerations. It envisages the contemporaneous involvement of participants. This contrasts with the provisions of section 103 which, prior to the enactment of the Remote Participation Act had spatial implications, now applies primarily to pre-recorded evidence a temporal consideration with associated provision for cross-examination in what is referred to a mode of evidence application.
37 However, for a detailed consideration of the use of spatial technologies for off-shore participants in the context, not of the Courts (Remote Participation Act 2010 but by way of an application pursuant to s. 103 of the Evidence Act 2006, see the decision of Stevens J in Deutsche Finance NZ Ltd v CIR (2007) 18 PRNZ 710 where he provides for a detailed list of procedural requirements accompanying the participation of the witnesses involved. It is suggested that these criteria could and should be applied in cases involving remote off-shore participation under the Courts (Remote Participation) Act. 38 Langbein above n. 5 especially p. 48 et seq. 21
The purpose of the CRPA is to enable a greater use of audio-visual links (AVL) in New Zealand courts. 39 The Act sets out the criteria for consideration of the use of AVL in court proceedings. There is a presumption in favour of AVL in criminal procedural matters where no evidence is being presented unless the judicial officer is satisfied on his or her own motion or on the objection of any party that the criteria would not be satisfied. It allows for the use of AVL in criminal substantive matters where evidence is being presented on the application of any party or on the judicial officers own motion where the judicial officer considers that the criteria would be satisfied, but AVL must not be used for the appearance of a defendant at trial that determines his or her guilt or innocence unless the defendant consents to that use. 40 However, it does not mandate the physical presence of a witness or indeed counsel. Section 5 of the CRPA sets out the general criteria allowing the use of AVL: (a) the nature of the proceeding: (b) the availability and quality of the technology that is to be used: (c) the potential impact of the use of the technology on the effective maintenance of the rights of other parties to the proceeding including (i) the ability to assess the credibility of witnesses and the reliability of evidence presented to the court; and (ii) the level of contact with other participants: (d) any other relevant matters.
Additional criteria are set out in s 6 relating to the use of AVL in criminal proceedings. The language of the section is directive. The judicial officer or registrar must consider whether or not to allow the use of AVL, or the appearance of any participant in a criminal proceeding, the potential impact of the use of the technology on the effective maintenance of the right of the defendant to a fair trial and on his or her rights associated with the hearing and in particular: 41
(a) the ability of the defendant (i) to comprehend the proceedings; and (ii) to participate effectively in the conduct of his or her defence; and (iii) to consult and instruct counsel privately; and (iv) to access relevant evidence; and (v) to examine the witnesses for the prosecution; and (b) the level of contact the defendant has with other participants; and (c) any adverse impression that may arise through the defendant or any other participant appearing by means of AVL, and whether that adverse impression may be mitigated.
If a defendant consents to the use of AVL at trial the judge may direct the jury that it must not draw any adverse inferences against any party to the proceeding because it is being
39 AVL is defined as in relation to a participant's appearance at any proceeding, means facilities that enable both audio and visual communication between participants, when some or all of them are not physically present at the place of hearing for all or part of the proceeding (section 3). 40 Courts Remote Participation Act 2010 s. 9(2). 41 CRPA, s 6. 22
used. 42 There is no presumption that AVL will be used in criminal substantive proceedings, although there is such a presumption in criminal procedural hearings. Section 9 prohibits the use of AVL for the appearance of a defendant in a trial that determines his or her guilt or innocence unless the defendant consents to its use. The AVL Trial The Act provides a significant recognition of the potential for communications use. Although it dispenses with the need for physical presence it maintains the essential aspects of the confrontation right. The accused is able to hear the evidence that is given. There is the ability for cross examination. The availability of high definition screens means that there will be little if any image distortion for the accused or other participants located elsewhere. In addition the provision of technology should pose little difficulty. There are a number of video-conference technologies available. At the moment New Zealand Courts use a dedicated Voice\Video over IP system that is effective but expensive and is not widely available. In late May 2014 I participated in a test of video-conferencing software and electronic bundle software in a mock international trial. 43 All the participants were scattered Auckland, New Zealand, Washington DC, London, Croydon and Edinburgh. The communications software used was Microsoft Lync and the Electronic Bundle was provided by Caselines, a product of Netmaster Solutions, an English company. The trial rapidly established the feasibility of the software tools, both of which are reasonably priced and are browser based which meant that no additional software needed to be installed on a users computer. In addition, the software meant that place did not matter a classic example of the application of spatial technologies. From a technological and practical point of view, a remote hearing is possible, practical and feasible. All Participants Lawyers, Judges, Witnesses, Accused Jury? The CRPA provides the following definition of a participant. a person who is, in that proceeding, any of the following: (a) a party: (b) the defendant: (c) counsel: (d) a witness: (e) a member of the jury: (f) a judicial officer who is presiding over the proceeding: (g) a Registrar who is presiding over the proceeding: (h) any other person directly involved in the proceeding whom the judicial officer or Registrar considers appropriate
42 CRPA s 12. 43 For reports see http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=G AZ020614 (last accessed 27 June 2014) http://www.independent.co.uk/news/uk/home-news/the-etrials-of- the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.html (last accessed 27 June 2014) and for an interview with Judge Simon Brown QC on the effectiveness of the trial see https://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.be (last accessed 27 June 2014) 23
Given that definition, all the participants to a hearing could attend by way of AVL. Admittedly, it would be a pioneering judicial officer who authorised a proceeding to be conducted in such a way, but if all the other criteria for AVL utilisation could be fulfilled there is no statutory impediment for a hearing to be conducted in this way. Certainly, when one looks at the possible scope of CRPA, one can see that the Act provides a significant exception to the provisions of section 83 of the Evidence Act, yet maintains a form of virtual confrontation. The physical presence trial could become a thing of the past with the bold use of the CRPA. Expanding the Use of the Remote Participation Act The opposition in Parliament to the enactment of the CRPA had two major themes. The first, as may be expected, related to the confrontation right and the physical presence rule implied by s.25(e) of the New Zealand Bill of Rights Act 1990. The other related to some of the technological shortcomings surrounding the use of AVL. While very few, if any, opposed to aspects of the Bill had any problem with AVL being used for procedural hearings, there was considerable objection to its use for a substantive hearing. One suggestion was that without physical presence an accused could not keep tabs on the cozy conversation between counsel, the inattentive or snoozing juror or, worse still, the sleeping judge or that the camera may not be playing on the key participants at a vital stage. Such a suggestion ignores split screen and multi camera technology, along with voice activated cameras and swivelling cameras. The days of a single static camera are long gone. At no stage in the debate did there seem to be a consideration of the advantages or shortcomings of the use of technology to fulfil the purposes of the Bill of Rights Act or the Evidence Act. Rather, the visceral reaction was based upon the outrageous suggestion that a trial could take place other than in the physical presence of the accused. 44
As matters stand the CRPA is underutilised. It is used primarily for bail or remand hearings in courtrooms that are specially equipped with expensive AVL equipment. This may well result in a significant cost saving for what are essentially procedural roll-over remands. The disturbing thing is that although greater use could be made of AVL, until the necessary equipment is made available, this form of technology use, which could be significantly beneficial for witnesses together with savings in fees for counsel from a distance, is languishing. There are alternative means available for providing AVL that do not involve the expensive, dedicated systems currently in use. But as I have said, lawyers are slow adopters of technology, and it is doubtful that they will lead the charge towards the greater utilisation of AVL. Enhancing Orality I have emphasised that we continue to use oral evidence as the principal means of putting information before the fact finder. There will always be room for orality in the criminal trial process but there are shortcomings in this form of information recall and transmission some of which can be mitigated by the use of communications technologies.
44 For the debates see Hansard Vol 664, p. 12266 http://www.parliament.nz/en- nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second- reading (last accessed 27 June 2014); Hansard 30 June 2010 Vol 664 p. 12349 http://www.parliament.nz/en- nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in- committee (last accessed 27 June 2014); 24
Problems with Oral Evidence What, therefore, are some of the problems that surround oral testimony? Do these problems undermine the mystique that surrounds human witnesses and that demands their presence in Court.
1. Memory recall. Sir Edward Coke, in promoting his Reports, referred to slippery memory. In terms that demonstrate how attitudes to the written record had changed over the centuries, he said Nothing is or can be so fixed in mind or fastened in memory, but in short time is or may be loosened out of the one, and by little and little quite lost out of the other, It is therefore necessary that memorable things should be committed to writing (the witness of times, the light and life of truth,) and not wholly betaken to slippery memory which seldom yieldeth a certain reckoning 45
Sir Edwards comments are as valid now as they were then. Memory is indeed slippery and recall of events differs from person to person depending upon their position and perspective.
Furthermore recall of events dims with the passage of time, or becomes modified. As details fade an editing or mental shorthand process takes place where the highlights of an incident may remain but the detail is lost. Cross-examination on detail may be futile in eliciting facts but may be successful in undermining a witness who may, in broad strokes, be painting a picture of truth. Yet we expect witnesses to recall events of some months or years past, based on memory. We criticise witness coaching. We allow notes made at the time to refresh memory rather than allow them to be more fully used. Surely their contemporaneity would render them more reliable than slippery memory 2. The problem of demeanour. In recent years, the value of demeanour evidence in assessing credibility has been all but rejected at least by science if not law. 46
In a highly controlled laboratory environment it seems possible to make accurate conclusions (albeit very limited) on the truthfulness of an individual from their demeanour. The courtroom as a highly charged, intimidating, inherently confrontational and dehumanising environment is as far from such a scientifically controlled environment as one could get. 47
Demeanour is often advanced as a matter bearing upon credibility. Gallavin gives the following example - Expert A is a strong speaker, articulate, confident, forthright,
45 1 Cokes Reports Preface to the Reader (Thomas Wight, London 1600) Unpaginated. 46 That may well be changing in light of changes to appellate deference to the advantages that a trial judge had of hearing and seeing the witness see Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141 47 Chris Gallavin Demeanour Evidence as the backbone of the adversarial process Lawtalk Issue 834 14 March 2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the- adversarial-process (last accessed 20 June 2014) 25
whereas Expert B is shy, appears to lack confidence and finds it difficult to make eye contact. In light of this, it seems incongruous to suggest that demeanour is only something relevant in cases where credibility is recognised as being in issue. Thus credibility becomes a performance issue.
If demeanour is so questionable a method of assessing credibility, is it necessary for witness presence in the Court.
Why has demeanour been considered important? Professor Ian Coyle puts it this way: In practice, this means attending to verbal and non-verbal indicia of truthfulness, in addition to considering collateral information that may refute or confirm a witnesses recollection. In many cases, where competing versions of events are given, the assessment of such indicia are of great import: sometimes it may be the only basis on which a decision can be arrived at. Legal training and experience confers no special benefit in detecting deception in forensic contexts. There is no compelling evidence which proves that lawyers generally, and judges in particular, operate at anything better than chance level when detecting truthfulness, although there is a danger that they may think otherwise. And there is an abundance of evidence that jurors attend to unreliable indicia of deception when making their decisions. 48
The problem becomes more acute when stereotypical behaviour comes in to the mix.
An impressive witness according to Anglo-Australian culture will look his or her questioner in the eye and answer questions confidently and clearly. In other cultures, however, direct eye contact maybe considered rude and challenging... such responses may be misunderstood as demonstrating evasiveness or shiftiness on the part of the witness. 49
The problem is that gaze aversion is the most unreliable indicator of deception in all countries that have been studied. Professor Coyle discusses other forms of stereotypical behaviour that are unreliable indicators of lying or deception
Apart from gaze aversion, other global, pan-cultural, stereotypes of lying included the entrenched beliefs that liars shift posture (65.2%), touch and scratch themselves (64.8%) and tell longer stories than usual (62.2%). None of these stereotypes are accurate (The Global Deception Research Team, 2006). More generally, a very significant proportion of laypersons and professionals beliefs about non-verbal and verbal cues to deception have been repeatedly demonstrated to be incorrect (De Paulo, Lindsay, Malone,
48 Professor Ian R Coyle How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility? Report to the Criminal Lawyers Association of Australia and New Zealand 3 April 2013 p. 8. 49 Equal Treatment Benchbook of the Queensland Supreme Court (2006) p. 75. 26
Muhlenbruck, Charlton & Cooper, 2003; Mann, Vrij & Bull 2004; Mann & Vrij, 2006). Apart from the ubiquity of gaze aversion, frequent blinking, fidgeting with objects or self, self-grooming, shifting posture, rate of speaking and brow lowering, none of these indicia are reliable indicators of lying. 50
Coyle suggests that proper directions or counter-intuitive expert evidence should be given to jurors to correct well-entrenched misconceptions of which behavioural indicia are indicative of deception. But the problem remains. Demeanour varies from person to person. Generalisations about behaviour are unhelpful in determining the witness of truth.
3. Ability to recount the articulate vs the inarticulate This may be seen as an aspect of demeanour but in terms of communication and information flow it is probably in a category of its own. Demeanour goes to the assessment of the person communicating the information. The ability to recount goes to the act of communication and has an impact upon the assessment and the quality of the information that is being given. An eloquent and verbally skilled witness one who is comfortable with the subtleties and nuance of language is going to be able to tell the story more convincingly that the person with a limited vocabulary, unskilled in the nuance of language. Such a person is easy game for the articulate and skilled lawyer in cross-examination yet may still be a witness of truth, unable to properly tell his story. There are other factors which I shall address below that may cause further problems and hamper this individuals ability to tell his story.
4. Vocal abilities and verbal skills Associated with problems of articulation may be those that a person may have in being comprehended. Such a person may have the ability to converse in, say, English, but a problem for the auditor may arise when the speakers accent impairs the auditors comprehension of what is being said. Subconsciously the auditor may attribute to this witnesss story less weight, simply because she had difficulty fully understanding what was being said. In such a case any empathy that might naturally occur between speaker and auditor is reduced, diminished or lost completely. Further problems may arise in terms of tone of voice, accent, speech impediments and the like - associated aspects of articulation that deal with the ability to speak or enunciate.
5. The problem of translation. Difficulties in comprehension are increased when a translator is present. This necessarily means that the story is delivered in a stuttering fashion with an absence of nuance, and the true meaning that the speaker seeks to convey may be lost as a result of lack of nuance. The problem is further complicated not only for the witness
50 Professor Ian R Coyle Report to the Criminal Lawyers Association above n.106 p. 11. On the subject of demeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith Juror Assessment of Veracity, Deception, and Credibility, http://www.uark.edu/depts/comminfo/CLR/smith1.html (last accessed 20 June 2014.
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who does not have English as a first language but for people who do and are participating in a trial where the accused does not. As a result of the New Zealand Supreme Court decision in Abdula v R 51 every word must be translated line by line for the benefit of the accused. This heightens the stuttering way in which the story is being told, interferes with the sequentiality of the account and impairs or reduces concentration and comprehension. In its quest for ensuring that the accused comprehends what is being said, the Supreme Court has thrown the importance of communicating information between witness and fact-finder to the wind and has done potential damage to the proper assessment of the information that is being conveyed, not only by the witness who requires a translator, but by all the witnesses who do not, but whose evidence is effectively being laboriously translated line by line for the accused.
6. Intellectual ability and suggestibility. In some respects these aspects of communication are related to those of articulation and vocal and verbal skills. There can be no doubt that the person who suffers an intellectual disability that affects recall or articulation is going to have difficulties telling a story let along a convincing one. And one has to be careful to ensure that empathy with a witness does not overflow into sympathy which clouds objectivity.
7. The Court Environment Finally there is the intimidating nature of the Court environment a recognised problem that can result in nervousness and inhibition in all but the most experienced witnesses (who are usually Police officers). Once again the Court environment, the unusual garb worn by the participants, the ritualised atmosphere are all impediments to proper and coherent story telling. Most witnesses manage, but the whole focus for the witness should be on the story that is being told rather than being distracted by nervousness and inhibition. The problem is that rather than becoming a forum for ascertaining fact, the Court itself inhibits the communication of information upon which the fact finding depends.
Some of these problems are recognised by allowing evidence to be given in an alternative way pursuant to s. 103 of the Evidence Act 2006. Some Solutions using Spatial and Temporal Technologies Some of the problems that I have enumerated can be addressed or mitigated using spatial or temporal technology types. 1. Maintaining the Information Flow the issue of translation. Abdula v R deals with affording the accused information about what is being said in Court. There is no reason why the fact-finder should be distracted by the line-by- line approach suggested by the Supreme Court when technology can solve the problem and afford the accused his right to and participation in a fair trial. Simultaneous translation employing a remote translator and a set of headphones for
51 SC 80/2010 [2010] NZCA 332 28
the accused a facility which was used 68 years ago at the Nuremburg trials 52 will resolve this issue without interrupting or compromising narrative flow.
As an adjunct to the discussion of translation where possible and in my view it should be a rule a witness statement from a person who speaks other than English as a first language should be taken and the interview conducted in his or her first language. An interpretation transcript can later be provided. The possibility of inaccuracy arising from a translated police interview even when recorded on video can lead to problems where questions or answers are mistranslated and the interview pursues a different direction as a result of inaccurate translation. This has happened in more than one trial over which I have presided.
2. Articulation of Evidence in a Threatening or Unfamiliar Environment This omnibus solution addresses items 3,4,6 and 7 of the oral evidence problems mentioned above. It is recognised that there will be no immediate solution to communication problems involving vocal or articulation skills or intellectual ability. But there is a case for reducing any aspects of procedure that may enhance these problems. The most obvious aspect of the trial that might aggravate these problems and create impediments to the communication of information is the Court environment itself.
A solution may be found in the employment of both temporal and spatial technologies. In New Zealand the provisions of section 103 et seq of the Evidence Act 2006 provide a possible solution. Section 103 allows for directions to be given as to the way in which evidence is to be given. 53 A judge may direct that evidence be given in the normal way that is in accordance with the provisions of section 83 of the Act or in an alternative way as provided in section 105 of the Act.
The options provided are as follows: (a) the witness gives evidence (i) while in the courtroom but unable to see the defendant or some other specified person; or (ii) from an appropriate place outside the courtroom, either in New Zealand or elsewhere; or (iii) by a video record made before the hearing of the proceeding:
Options (i) and (ii) are examples of spatial evidence giving that will inevitably involve some use of technology, especially in option (ii). Indeed, the proposal in option (ii) may well be covered by the CRPA, although having said that, section 19 of the CRPA provides that nothing in the CRPA affects the ability of the Judge to make an order
52 See The History of Simultaneous Interpretation United Nations http://www.unlanguage.org/Careers/Interpret/COV/Simultaneous/default.aspx (last accessed 28 June 2014); Jesus Baigorri Jaion From Paris to Nuremburg: the birth of conference interpreting (John Benjamins Publishing, Amsterdam 2014) Translated by Holly Mikkelson and Barry Slaughter Olsen p. 211 et seq, Christina Anna Korak Remote Interpeting via Skype a viable alternative to in situ interpreting? http://www.openstarts.units.it/dspace/bitstream/10077/8614/1/Korak_IN17.pdf (last accessed 28 June 2014) 53 This is commonly referred to as the mode of evidence. 29
under s. 103(1) of the Evidence Act that is to make an order that evidence be given in an alternative way. Thus the provisions of the two Acts, as they affect evidence giving, run concurrently, although the tests in the CRPA are significantly less onerous than those set out in section 103(3) of the Evidence Act.
Option (iii) involves a pre-recorded statement and is an example of the use of a temporal form of technology employing a preservational evidence retention system. Once video tapes were used. DVDs are now the preferred preservational medium although with the development of hard drive cameras it may well be that pre- recorded evidence could be retained on flash drives or small in camera hard drives.
(b) any appropriate practical and technical means may be used to enable the Judge, the jury (if any), and any lawyers to see and hear the witness giving evidence, in accordance with any regulations made under section 201:
This sub-clause mandates the use of any technology. It is not specific as to the technology that may be employed. The usual way that evidence may be given in such cases is for the pre-recorded statement to be played and then the witness, who is present in another location (usually in the Courthouse although this is not required by the Act) will be cross-examined via CCTV an example of a mixed use of temporal and spatial technologies.
(c) in a criminal proceeding, the defendant is able to see and hear the witness, except where the Judge directs otherwise:
This sub-clause preserves the presence requirement but does not mandate physical presence. The test is that the defendant can see and hear the witness and it is suggested that this test should be a universal one rather than maintain the archaic requirement for physical presence. I use the word archaic because improved and modern communications technologies render trial processes so. 54
The grounds for making an order that evidence be given in an alternative way are primarily for the protection of the vulnerable witness. The grounds recognise that vulnerability does not necessarily relate to age. Issues such as intellectual, linguistic and witness fears do come into the mix.
54 The remaining sub-clauses and sub-sections are not really relevant to this discussion but read: (d)in a proceeding in which a witness anonymity order has been made, effect is given to the terms of that order. (2)If a video record of the witnesss evidence is to be shown at the hearing of the proceeding, the Judge must give directions under section 103 as to the manner in which cross-examination and re- examination of the witness is to be conducted. (3)The Judge may admit evidence that is given substantially in accordance with the terms of a direction under section 103, despite a failure to observe strictly all of those terms.
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Section 103(3) provides as follows: A direction under subsection (1) that a witness is to give evidence in an alternative way, may be made on the grounds of (a) the age or maturity of the witness: (b) the physical, intellectual, psychological, or psychiatric impairment of the witness: (c) the trauma suffered by the witness: (d) the witnesss fear of intimidation: (e) the linguistic or cultural background or religious beliefs of the witness: (f) the nature of the proceeding: (g) the nature of the evidence that the witness is expected to give: (h) the relationship of the witness to any party to the proceeding: (i) the absence or likely absence of the witness from New Zealand: (j) any other ground likely to promote the purpose of the Act.
Therefore, on the face of it, some of the problems that I have identified could be mitigated by a robust use of the grounds for evidence to be taken in an alternative way, and it is to be remembered that an order may be made on the Judges own motion.
However, there are other criteria that must be taken into account. The Judge must have regard to the need to ensure the fairness of the proceedings and, in the case of the criminal trial, that there is a fair trial. In addition the Judge must take into account the views of the witness, the need to minimise stress and, in the case of a criminal proceeding, the need to promote the recovery of the complainant, together with any other factor relevant to the just determination of the proceeding.
It is quite clear that many of the problems surrounding orality that I have identified may be addressed by the use of temporal and spatial technologies by the use of a technologically focussed use of sections 103 and 105 of the Evidence Act 2006.
Occasionally there are valid objections to the utilisation of technological solutions. The case of R v Sadlier tried to bring together spatial and temporal evidence taking and giving technologies by using a pre-recording of evidence in chief together with a pre-recording of cross-examination. The whole recording would be played to the jury and would comprise the entire evidence of the witness. The Court of Appeal made a number of general comments about this process. 55 Effectively the defence would be showings its hand before the trial had started. In addition the accused was entitled to hear the prosecution opening and theory of the case before taking any step. Disclosure was often delayed which meant that the approach of the accused may be predicated upon insufficient information. In addition counsel would be required to prepare twice for trial involving extra costs. Other trials may be delayed while resources were being used for pre-recording, and there was an inability to tailor the cross-examination to the trial dynamic or for the jury.
55 M v R [2011] NZCA 303 31
Presentational Technologies Technology can be used for presentation of other information in the course of the trial. Examples may be found in real evidence, illustrations and documents. One of the problems in the current criminal trial process involves the use of photographs. The jurors are provided with a booklet of photos and the witness demonstrates, on a hard copy photograph that he or she is holding, matters of interest in the photo. Problems of distance between jurors and witness can create communication problems, and the marking of the photo with a pen may not be the most accurate way of preserving a reference to a matter of interest. The projection of photos onto screens resolves the problem of scale. A fifty or sixty inch High Definition screen can project an illustration that displays more detail than is apparent on a 5 x 7 photo. The identification of matters of interest can be done with a laser pointer, and markings can be retained on a photo-responsive copy of the image that can later be printed out. We are wedded to hardcopy because of the apparent preservational qualities of paper. However, the communication of images and illustrations can be at least as effectively achieved using digital technologies. In addition to the large screen, jurors could be provided with their own screens in the jury box or, alternative, a tablet computer linked to a wireless system to which the illustrative exhibits are transmitted. In addition software tools could be provided so that jurors could make their own annotations to the exhibit. Presentational technologies can be used for any of the illustrative or demonstrative requirements during the course of a trial. In addition, use can be made of the wide range of publicly and freely available sources of information that can properly inform the jury of the context of events. Utilities such as Google Maps, Google Earth and Street View can be used as scene setting utilities and that may avoid the necessity of a scene visit. Street layouts, the intersection where the accident took place, the relative location of buildings or commercial premises to the location of the scene of the crime may all be presented using publicly available resources for illustrative purposes. It is acknowledged that these sources of information are primarily illustrative and may not depict the scene at the moment at which events took place. However, as long as there is reasonable contemporaneity with the events in question, their use can be considered and could well be helpful. Documents Digitisation, Searchabilty and Analysis. From time to time trials will involve documentary evidence often of considerable volume. The usual means of document presentation has been by way of hard copy, often contained in the ubiquitous Eastlight folder. However, there has been progress in the use of digital technologies which have been employed in document presentation in the course of a hearing or a trial. In addition there are occasions where documents have been created for the purposes of a trial in particular transcripts of intercepted conversations or streams of text messages or emails that are similarly voluminous. While the presentation of these items of evidence may be enhanced by the use of digital technologies, their use by the jury may be compromised by the volumes of paper through which the jury must sift to locate and analyse aspects of the evidence. 32
The jury should be presented with documentary evidence in digital format so that they can properly search for and locate matters of evidence or information that may assist in their determination. Using document analytics tools such as concept searching or e-mail threading as well as blunt force keyword searching, the jury can more efficiently go about their task of analysing the information that is before them. Using analytical tools the jury may, for example, identify common threads in recorded conversations, frequently utilised modes of expression in text messages and the like. The tolls that are employed in document isolation and analysis in e-discovery can be made available to the jury to assist in the analysis of documentary evidence. 3D Rendering an example from the British Museum Egyptian mummies have been the focus for enquiry and study over the past 200 years. For much of that time this could only be done by unwrapping the bodies, giving archaeologists and specialists one opportunity to carry out their investigations before the integrity of the mummy was destroyed forever. A similar situation occurs when the forensic pathologist applies the scalpel to the body of the deceased to ascertain cause of death. The first investigation compromises the integrity of the evidence, thus complicating subsequent examinations. Would it be possible to carry out the forensic examination without interfering with the integrity of the evidence, thus making subsequent reviews possible. The investigation of mummies provides an answer. The advent of sophisticated scientific imaging techniques since the 1980s has virtually eliminated the need to disturb their coverings. The non-invasive investigation of mummies, which was previously conducted using X-Rays has been superseded by high resolution 3D imaging techniques, namely computerized tomography (CT) scanning also known as CAT scans (computerized axiam tomography) A CT scanner also uses XRays but, instead of being static and pointing in one direction, the source rotates rapidly around the body as it passes through the scanner. A detector receives the Xrays and a computer is used to create very detailed images of the inside of the body. The images (or tomograms) are recorded as thousands of two- dimensional slices that can be combines using graphic software so-called volume rendering to produce 3D images of the body inside the wrappings. The technology allows for the separation of layers so-called segmentation and peel away structures in order to observe what is beneath each one. This allows for the virtual removal of bandages, skin, muscles, grave goods within the wrapping, organs and skeleton. Items such as grave goods, together with parts of the skeleton can also be rendered using 3D printing. All this while the mummy remains intact within its wrappings. The British Museum in its recent exhibition Ancient Lives, New Discoveries has demonstrated this technology. 56 Visitors to the exhibition are able to virtually unwrap eight mummies on display as well as study 3D printed copies of parts of the skeleton and grave goods. The evidential advantages of this technology flowing from this must be obvious, not only for forensic pathology but for other forms of evidence amenable to CAT scanning which maintains evidential integrity.
56 John H. Taylor and Daniel Antoine Ancient Lives, New Discoveries Eight Mummies, Eight Stories (British Museum Press, London 2014) 33
3D Use The potential for presentational technologies is expanding as a result of the development of 3D modelling. The Future Crime Scene Project of the New Zealand ESR provides juries with detailed 3D virtual tours of crime scenes. The data that forms the basis of the modelling is collected as the crime scene is investigated including the location of items of interest such as blood spatter. 57 The use of such technology has the advantage of presenting an illustrative, realistic, contemporaneous view of the crime scene uncluttered by floor plans or without the necessity of having to explain the position of a photographer or the like. The walk-through nature of the technology, and the capability for 360 degree views allows the viewer to be virtually present in a way that would be difficult to capture orally or by conventional means. 3D Projection The use of 3D projection may mean that a sensitive piece of real evidence need not be handled by the jury, but may be projected on a screen and viewed using 3D glasses, obviating the need for the exhibit to be handed around the jury box. In a demonstration which I attended at Courts Technology Conference 2013 in Baltimore, Maryland a brick which had fragments of hair and skin adhering to it was presented using 3D technology. This was done because the fragments of hair and skin could easily be dislodged, compromising the value and integrity of the evidence. The exhibit could be rotated, so that it could be viewed from all angles. Professor Fred Lederer outlined the experiment as follows: With the help of WolfVision and Panasonic, CLCT demonstrated the first known courtroom use of 3D evidence at the 2013 Court Technology Conference, showing a bat and jagged brick in 3D in a simulated road rage trial. (Yes, we have reached the point at which the judge's instructions include, "Jurors should now put on their 3D glasses.") It's unclear whether 3D evidence should be admissible or, if so, should await 3D monitors without glasses. 58
Professor Lederers caution is not unexpected, but as 3D technology develops it is very likely that this option for evidence presentation will have to be considered. There seems to be little reason why such a means of evidence should be excluded. The real evidence the brick is available and present in the courtroom. It has to be for the 3D presentation to take place. It is not as though the item is a reconstruction. 3D Printing Having said that, 3D technology does allow for the reconstruction of an item of real evidence by way of 3D printing. The use of 3D printing for investigative or court purposes is still relatively new. This may be in part because of a perception of a complex technology, cost, or simply a lack of understanding of what can be done with 3D printing. Its a wonder
57 ESR Media Release, 18 December 2012 ESR working with Academy Award winning 3D artist on new CSI technology trials http://www.esr.cri.nz/news/esrmediareleases/Pages/Crimescenetechnology.aspx (last accessed 23 June 2014); ESR Annual Report 2013 esp at p.17 and 20 http://www.esr.cri.nz/SiteCollectionDocuments/ESR/Corporate/PDF/ESR_ANNUAL_Report2013_web.pdf (last accessed 23 June 2014)
58 Fred Lederer Some Thoughts on Technology and the Practice of Law (2014) The Bencher (a bi-monthly publication of the American Inns of Court) http://home.innsofcourt.org/for-members/current-members/the- bencher/recent-bencher-articles/januaryfebruary-2014/some-thoughts-on-technology-and-the-practice-of- law.aspx (last accessed 23 June 2014) 34
why more investigators, lawyers, and expert witnesses havent seen the benefit of 3D printing for use in court. For anyone who has been following the trends in 3D printing, it comes as no surprise that there has been significant growth in this area in the past several years. New companies have formed providing small, at-home 3D printers for ready-made parts while larger and more professional printers allow for a variety of materials to be used with colour, tight tolerances, and improved surface finishes. Materials and technologies range from powder based materials, liquid resins, metals, and ceramics. Traditionally, these 3D printing systems have been used by engineers to create new or replacement parts while hobbyists and artists have the ability to create ready-made pieces to their own specifications. However, in the case of the criminal investigator or forensic scientist, only a few have actually used this technology in court. Perhaps the greatest reason for the 3D printing boom has to do with the availability of 3D digitizing systems such as laser scanners, structured light scanners, photogrammetry, and similar technologies. The cost of hardware has become affordable and the ease of use of photogrammetry software has made these technologies available to the average consumer. A quality laser scanning system for smaller parts can be purchased for less than a few thousand dollars and in the case of photogrammetry, there are several low cost and even freely available programs and services offered to create highly detailed 3D models of everyday objects. The first step to creating a 3D printed object is to be able to digitize the object into a 3D model. Although terrestrial laser scanners have seen some increased use by law enforcement agencies, close range scanners that accurately record smaller pieces of evidence like skulls, bones, and shoes are not commonly owned or used by police departments. This is one reason why 3D printing for forensic use is not such a common practice. Fortunately, a local service provider with equipment capable of digitizing a particular piece of evidence should not be too far away. The second step after an object has been documented in 3D is to ensure that the model is made into a continuous volume without any missing pieces. 3D printing is a process of combining materials, one layer at a time, to make objects from 3D model data. This is opposite to a subtractive manufacturing method such as machining. The benefit is that 3D printing allows for very complex parts to be made that would be impossible with other manufacturing methods. However, much like stacking layers of blocks on top of each other, there must be at least a partial block underneath to support the next layer on top. Therefore, the 3D model usually requires some preparation to fill any gaps and solidify the object into a water tight mesh. The final step is the actual printing process itself. Similar to a regular inkjet printer, there are different quality settings that can be chosen for most 3D printers that define the surface finish and step increment of the part. Depending on the shape and size of the part, print times can range from just a few minutes to several hours for more complex parts. 35
3D printing can be used for footprint which previously have been modelled using plaster casts. Fingerprints can be captured and rendered in 3D. Presently they are captured by the use of powder and tape. While in court, a fingerprint examiner could use a large replica of a suspects fingerprint to make identifications and comparisons by colour coding certain ridge features (such as islands, crossovers, and bifurcations) and matching them to a found print at a crime scene. Jurors benefit by being able to easily visualize the 3D replica and they have the benefit of haptic perception. Fingerprints are a good example of where we take something small and create it at a much larger scale to bring out specific details which would normally not be easily visible by the naked eye. Fingerprint examiners in training benefit similarly from having the ability to easily visualize and feel what an enlarged 3D replica of a persons finger looks like before making a flat print comparison. Other forensic uses of 3D printing are extensive and are open to creativity. Some of these might include: Printing a scale model of the first floor in a home where a crime was committed. Recreating a physical copy of a weapon found at a crime scene. Displaying bullet trajectories through a 3D scanned article of clothing. Creating a model of a suspects dentition and showing how well a bite mark aligns. Printing a scaled model of a collapsed building due to a bombing. Creating test pieces of a piece of evidence that might be used in an experiment.
Although there are few cases where 3D printing has been adopted for investigative or court purposes, the ability to physically recreate a piece of evidence is an interesting approach. The range of objects can be as small as a fingerprint or can be an entire crime scene that is scaled down to just a few feet. As investigators and scientists start to see the benefit of replicating evidence, they will need to begin looking at digitizing technologies such as close range laser scanners, structured light scanners, and photogrammetry. Once these technologies have been adopted and more evidence is captured in 3D, there will very likely be many more cases where 3D printing will be applied. 59
There are continually developing methods of evidence presentation. Although the use of a monitor will always require some form of interface such as a projector, laptops are being replaced with tablet-style devices. Professor Lederer observes that lawyers and judges who
59 Eugence Liscio Forensic Uses of 3D Printing Forensic Magazine 4 June 2013 http://www.forensicmag.com/articles/2013/06/forensic-uses-3d-printing (last accessed 23 June 2014) For recent legal scholarship on 3D printing and its uses see Nora Freeman Engstrom 3-D Printing and Product Liability: Identifying the Obstacles, 162 U. Pa. L. Rev. Online 35 (2013); Peter Jensen-Haxel L.C. Ebert, M.J. Thali R. Ross 3D Printers, Obsolete Firearm Supply Controls, and the Right to Build Self-Defense Weapons Under Heller, 42 Golden Gate U.L. Rev. 447 (2012); Getting in Touch--3D Printing in Forensic Imaging, Forensic Sci. Int'l 2011 Sep 10; 211(1-3) (all last accessed 23 June 2014) 36
were uncomfortable with computers in the courtroom have far fewer concerns about iPads in particular. We hear constantly about lawyer interest in jury selection, evidence presentation, and even jury use of iPads. That iPads in particular were not designed for easy secure courtroom use matters not; everyone wants in on the iPad revolution. Evidence presentation via iPad seems to be increasingly popular, notwithstanding security and display connection issues. 60
Other Suggestions The discussion so far has focussed upon issues surrounding the information that a factfinder needs to reach a decision evidence. However, there are other ways in which technology can be employed in the trial process. Technology can also be used for by lawyers for presenting arguments, openings or closings to the jury using presentation software or in cases where the case is document heavy. The Courts in Queensland have developed processes for Electronic Trials in cases where the number of documents exceed 500. 61 In New Zealand the High Court Electronic Bundle Protocol is recommended in cases involving a similar volume of documents. Andrew Sinclair has set out some of the advantages of the E- Trial process 62 : - Each instructing solicitor and Counsel can have their own tablet or computer instantaneously accessing other documents within the database. - Parties can keyword search documents - Transcripts can be added to the database and are also keyword searchable. - With appropriate security in the form of password protected access to their file, the parties may login to the server from home or Chambers and thus have access to all the material wherever they are - Screens can be placed in the public gallery so public and media can also follow cross examination on documents. - All this material remains available to the judge in court, in chambers and at home with the purpose of writing the judgement, again all indexed and searchable - If there is an appeal to the e-trial becomes an e-appeal with minimal document management issues.
Greater Use of CCTV and Surveillance Systems Personal drones and Google Glass, the forehead-worn monitor, computer, and recording device, could give us even more intimate video of nearly every facet of human life. Setting aside the potential impact on whatever privacy we have left, it may be that nearly every trial will include, "Let's go to the video." Although the digital evidence may be brought to the courtroom on CDs, jump drives, or lawyers' computers, it may also be retrieved during trial from the "cloud" as the Center for Legal and Court Technology (CLCT), at William & Mary Law School did in its recent experimental (simulated) legislative hearings. As for cloud computing, we as lawyers will have to address whether we know where our privileged information is, whether
60 Fred Lederer Some Thoughts on Technology and the Practice of Law above n. 31 61 http://www.courts.qld.gov.au/information-for-lawyers/electronic-trials-etrials (last accessed 23 June 2014) 62 Andrew Sinclair Electronic Practice Management: The tools for managing the preparation and presentation of a trial brief (Copy on file with the author) 37
it's secure from prying eyes, and even whether we can count on it to survive natural, technical, or business failure. 63
It is an axiom not necessarily an absolute one in these days of Photoshop and digital content manipulation that the camera does not lie. But certainly the objective record that a camera or a CCTV recording can provide is a far superior form of information that the human eye and the ability (or inability) to articulate what transpired at a scene. The value of CCTV has been expressed in the following way: Closed-circuit television (CCTV) can provide compelling evidence and investigators should consider it in every investigation. Although CCTV is primarily used for corroborating what is already known or suspected in volume crime incidents, it is a powerful tool for triggering further investigative opportunities. It can be used, for example, to show the nature and severity of offences and to identify suspects and witnesses, inconsistencies in accounts and forensic or scientific opportunities, such as the location of discarded property or vehicles, especially where it may seem that an investigation has come to a standstill. The value of images cannot be overstated. They present evidence in a unique way and allow those involved with the criminal justice system to visualise the crimes in question. When a case goes to Court reinforced by good CCTV material, the prosecution is more likely to achieve a conviction 64
However, concerns about the use of CCTV evidence were expressed by Professor Gary Edmond from the University of New South Wales in 2009. 65 His concern lay in the uncritical acceptance by courts of this type of evidence and the lack of a reliability standard. His main concern related to the use of CCTV footage in the comparison of such images to a suspect. His concerns were that the procedures for image comparison had not been validated. Yet the presence of CCTV in modern communities has become pervasive.as this diagram demonstrates:
63 Fred Lederer Some Thoughts on Technology and the Practice of Law above n. 31. 64 National Policing Improvement Agency Practice Advice on the Use of CCTV in Criminal Investigations (National Policing Improvement Agency, London 2011) p. 7. 65 Gary Edmond, Katherine Biber, Richard Kemp, and Glenn Porter, Laws Looking Glass: Expert Identification Evidence Derived from Photographic and Video Images (2009) 20 Current Issues in Criminal Justice 337
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Facial Recognition Software What follows from the prevalence and pervasiveness of CCTV cameras (see above diagram) the next issue that arises is the use of facial recognition software as an identification tool. This is not an entirely novel or revolutionary concept, although the software itself has been the subject of comment. In 2009 Edmonds et al stated Notwithstanding its routine use in the criminal courts of Australia, New Zealand and England, there is, curiously enough, no empirical evidence supporting the validity or reliability of facial mapping techniques." 66
If that is still the case, the new technology would, of course, have to be scrutinised for reliability although in New Zealand some care would have to be taken as to manner in which such evidence was challenged. The results of the use of facial recognition software would qualify as evidence derived from a machine, device or technical process. There is a presumption of reliability on the particular occasion in question that is that the machine device or technical process did what the tendering party asserts it to have done, once the party tendering establishes what the machine, device or technical process ordinarily does. The presumption subsists in the absence of evidence to the contrary.
Thus, counsel for the party tendering would have to establish what the facial recognition software ordinarily does to give rise to the presumption that the software performed properly on a particular occasion. 67 Defence counsel has an opportunity to challenge at this point and should attack on general reliability principles. Expert evidence would have to be called. The problem is that with the way in which this technology has developed, it may be difficult to mount a successful reliability challenge. The second line of challenge available is to adduce evidence that on the particular occasion in question, the machine, device or technical process was not operating properly. Assuming that the general reliability
66 Ibid. p. 351. 67 See Scott v Otago Regional Council (HC Dunedin CRI 2008-412-1720 3 November 2008 Heath J. On this topic generally see David Harvey internet.law.nz 3 rd ed (LexisNexis, Wellington 2011) p. 476 et seq and esp at 480 486. 39
challenge has been unsuccessful possible avenue of challenge may lie in the quality of the image or data to which the facial recognition software is being applied. 68
Technological Competence as a Litigation Requirement One matter that will concern lawyers is the issue of technological competence. Although this has not yet hit our shores, in the United States the American Bar Association passed a resolution in August 2012 requiring lawyers to keep pace with relevant technology. This not only relates to the use of technology in the Courtroom but in practice generally. Lawyers are required to keep pace with relevant technology in order to comply with their obligation to competently represent clients. Although the resolution has largely flown under the radar, the change is significant because the ABA Model Rules of Professional Conduct (Model Rules) serve as a guide for the ethical rules governing lawyers in most states. Failure to comply with state ethics rules can lead to various penalties for lawyers, including temporary or permanent disbarment. That means in-house counsel need to understand the level of technological proficiency required to competently represent clients today and in the future. Comment 8 to Rule 1.1 states: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. Technological competency could well be a matter that reaches our shores before long. Conclusion The criminal jury trial, like all aspects of legal practice, is an exercise in information exchange. The objective is to come to a conclusion by determining the facts that are available and whether these facts fit within certain requirements defined by law. The consequences of that decision may be far reaching and often involve the life or liberty of the subject, as well as having a significant impact upon that persons immediate and wider family. In such circumstances, the conclusions that are reached should be based on the best quality of information available. Technology can assist in that objective. Quaestio cadit
68 Facial recognition or facial mapping technology has had a difficult passage in Australia - see Edmond et al Laws Looking Glass above n.63 at p346 - 350