Information Technology in Complex Criminal Trials

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Information Technology in Complex Criminal Trials -

A summary of the AIJA Report

Graham Greenleafand Andrew Mowbray

A version of this article appeared in theAustralian Law Journal, `Information Technology &the Law' column (1993

Introduction

Information Technology in Complex Criminal Trialsis intended to complement the Report byProfessor Mark AronsonManaging Complex Criminal Trials: Reform of Evidence and

Procedure (AIJA, 1992). The Report commences with surveys of the key technologies incomplex trials - free text retrieval of transcript, document summary databases, documentimage retrieval and presentation graphics - and the progress that has been made in utilisingthese technologies in various Australian and overseas jurisdictions. It then examines each ofthese technologies and their use and potential benefits in complex trials in some detail, aswell as the procedural and evidentiary reforms needed to ensure effective use. It concludes

with an examination of the improvements in communication, education and the setting ofstandards needed for more effective use of court technologies. A Bibliography lists over 200

books and articles on Court computerisation. The 140 page Report makes 58recommendations concerning these matters, and the purpose of this article is to summarisetheir thrust.

Given the subject matter of the Report, it is appropriate that it is the first AIJA publication tobe published in computerised form, as well as print. The Report on disk can be searched withfree text retrieval and browsed in hypertext using the DataLex Workstation Software,

provided by the Report's authors to the AIJA for this purpose.

Costs and causes of complex trials

The cost of a full criminal trial in New South Wales has been estimated as $20,000 per day,or $70 per minute of court time. Complex trials tie up a courtroom and judge for six monthsor more, at a cost of millions of dollars. The effect is severe on defendants, and on otherdefendants held in custody pending availability of trial facilities. Jurors who are expected tosurrender up to a year of their lives are likely to seek excuses. Legal aid budgets may beconsumed. Judge and jurors may 'lose the plot' in the face of complex and drawn-outevidence. 'Mega-trials' have a distorting effect on the criminal justice system as a whole.

There is less agreement about the causes of these ill effects. Such studies as there are identifya multitude of contributing factors, many relating to procedural and evidentiary problems, but
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also including the difficulties of simplifying complex evidence, and the inadequacy ofdocument handling systems. The Aronson Report addresses the procedural and evidentiarycauses. In the absence of hard evidence of the relative importance of these contributingcauses, estimates of the extent to which information technology can alleviate the problemmust be speculative. Although it is possible to identify how information technology will

alleviate a specific contributing problem, the overall significance of doing so must awaitfurther empirical study. The Report recommends a follow-up study of the lessons and cost-

benefits of the use of information technology in selected complex trials such as the Equiticorptrial in New Zealand and the ongoing Rothwells trial in Western Australia.

Technologies for court computerisation

Four main technologies have been used for litigation support: transcripts of evidence aresearched usingfree text retrievalsoftware; documents are summarised using databasesoftware, and the summaries are then used to produce discovery and exhibit lists, and for case

preparation; images of exhibits are stored using document imagingsoftware; and evidencehas been summarised in graphic form using various types ofpresentation software, including`slide shows' and, very rarely, interactive graphics. To date, these technologies have primarily

been used in a 'stand alone' fashion, with integration between two of the components at best.

There is as yet no single program or integrated suite of programs which is clearly best suitedfor use in Australian trials. The Report found little reason to conclude that the desirablefeatures of litigation support software were generally understood by agencies involved insuch trials, and consequently recommended that a checklist for the evaluation of litigationsupport software should be developed and publicised, possibly based on the American BarAssociation'sDraft Guidelines for Litigation Support Software.

Managing paper mountains - the 'paperless courtroom'?

The potential benefits of the use of document imaging to more efficiently handle the 'papermountains' of documentary exhibits in complex trials has been explained at length in thiscolumn previously (xx ALJ xx) in the context of the Rothwells trial in Western Australia. TheRothwells system also provided a desirable degree of integration between the exhibit images,free text retrieval of transcript, and document summaries.

In the New Zealand Equiticorp trial, imaging technology was subjected to a lengthy practicaltest in a complex trial which ran for six months in 1992. Over 50,000 pages of exhibits were

converted to an image database, accessible independently by all participants in the courtroom.Among the advantages identified by Tompkins J were that witnesses did not ask to see papercopies of documents about which they are being questioned, and seem to have found it easierto refer to documents presented on screen; that 'considerable' time has been saved in dealingwith exhibits; that counsel, judge and witnesses have all found it easier to refer to documents;and that there has been less clutter in the courtroom, with judge and counsel requiringvirtually no access to paper copies of exhibits. Evidence flowed more smoothly becausewitnesses were not delayed in addressing documents. The witness could page back andforward within a document image once it was on screen. New documents were selected forthe witness by court staff. During submissions, the judge could call up documents on screento which counsel was referring.


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The Report recommends that all agencies involved in complex trials should considerimplementing image storage and retrieval of documentary exhibits, and the integration ofsuch document imaging with text retrieval of transcript. Government agencies responsible forcourt administration should establish at least one courtroom in a State or Territory which isequipped fully to conduct such trials. The court-provided facilities should include at least all

necessary monitors and cabling, devices to control the distribution of images, and devices tocapture and distribute images of exhibits as presented.

The Report also recommends, as a matter of priority, that the key Commonwealth agenciesinvolved in the investigation and prosecution of complex crime (the Commonwealth DPP, theAustralian Securities Commission and the National Crime Authority) should coordinate theiruse of software, database design, and text and image formats for document control, free textretrieval, and image retrieval, to ensure that there is sufficient compatibility to enable

prosecuting agencies to be presented with a 'computerised brief' by investigative agencies. Indoing so these agencies should be involved in, and take account of, the development ofnational standards concerning these matters (discussed below).

Presentation graphics - simplifying evidence

A distinguishing feature of a complex trial is a multitude of evidence concerning linkeddocuments or events. The principal purpose of the use of presentation graphics and variousforms of summaries is to simplify complex evidence so as to make it more understandable tothe jury. Such research as there is into how juries reach their decisions, particularly incomplex trials, has little to say about juror comprehension of complex evidence. Despite thelack of hard evidence that this is a major problem in complex trials, there seems to be generalagreement among commentators that appropriate use of information technology to summarise

evidence is desirable, and of benefit to both judge and jury. For example, Michael Hill QCconcludes from United Kingdom experience that 'in most cases of complex ... fraud moderntechnology provides an essential, not just a desirable, tool to assist in presentation and proof.

Presentation graphics serve three purposes: `Fact' graphics illustrate the most importantagreed facts in the case (eg time lines indicating the order in which events occurred, ordiagrams to explain the structure of a company or an interlocking group of companies);`Concept' graphics illustrate concepts with which a judge or jury may not be familiar,without any particular reference to the facts of the case being tried(eg reinsurance, theoperation of the futures market, how unit trusts work, `DNA fingerprinting'); `Case' graphicsshow the basis of the allegation, or of the defence, and are therefore different from fact

graphics in that they include disputed facts, and inferences which either side argues can bedrawn from the facts that they allege. Concept graphics will often require support by expertevidence, and may become contentious if there is expert disagreement concerning theconcept. Case graphics will often be contentious, raising claims that inferences are beingunfairly presented as facts, or that the graphics have emotive connotations.

The range of presentation technologies that can be used to produce graphical summariesvaries from simply using computers to produce static graphics; to `slide show' software that

builds up a picture layer by layer; to interactive graphics where the user can choose andcontrol the order in which elements of the graphic appear, customising the extent ofexplanation needed; and ultimately to computerised animation. There seems to be no direct

correlation between the degree of technological sophistication used to prepare and presentpresentation graphics and their effectiveness. The important factor is to ensure that whatever


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tools are chosen are appropriate and well used. Too little is known about the exact effects ofany types of presentation techniques on juries for there to be any certainty that the mostsophisticated technology will be the most effective.

Fully integrated litigation support

Since the Report was completed, a complex fraud case prosecuted in Sydney by theCommonwealth Director of Public Prosecutions has taken the integration of courtroomtechnologies even further. Exhibit images, free text retrieval of transcript and witnessstatements, and presentation graphics representing money flows, have all been linked to eachother so that it is a simple matter to go from transcript to an exhibit referred to, or from agraphic flow chart to an exhibit referred to in that flow chart. A number of 'off the shelf'microcomputer programs were integrated (see R Plibersek 'Computers help manage complexlitigation'Law Society Journal(NSW) Auguest 1993, p46). The integration was not yetcomplete. For example, where a step in a flow chart was based on oral evidence rather thanan exhibit, it was not possible to go from the flow chart directly to the transcript of thatevidence.

There are no longer any technical barriers to such fully integrated litigation support, and wesuggest that such seamless integration (as illustrated in the accompanying diagram) will

become the ideal in complex litigation of the future. Such integration will increase the utilityof each of the previously separate components.

Standards, procedures and co-operation

Effective use of information technology in trials will require co-operation between the

parties, standards on which such co-operation can be based, and new judicial powers andresponsibilities to ensure that the interests of justice and those of the efficient conduct oftrials are kept in proper balance. The Report recommends a wide range of evidentiary and

procedural reforms to this effect, building on the those in the Aronson Report.

The Report recommends the development of a number of national recommendatorystandards. A standard for transcript formats is needed, covering consistent references toexhibits and witnesses, numbering, text formats and any other matters which will facilitatethe input of transcript into a wide range of retrieval programs. Standards are needed for theformats in which images of documents, and computer-readable text of statements and otherdocuments are to be exchanged. Such standards should not be mandatory, due to the rapid

technological developments in these areas, but DPPs and other parties should be encouragedto adhere to them, and Courts should take such standards into account when making ordersconcerning the use of technology in trials. This will help ensure that unfairness does notresult from the use of non-portable formats. The national co-ordinating body (discussed

below) could organise the development of such standards by appropriate participating bodies.

Numerous procedural and evidentiary reforms are recommended in the Report. If theprosecution is directed to disclose copies of statements of witnesses to be called, exhibitsintended to be produced and other documents as directed (as per Victorian Crimes (Fraud)Bill 1992, cl 13(3)), the Court should also be empowered to order that copies be provided insuch paper or computer-readable form(s) as it may specify. Legislation to give Courts a

'generalised power to give pre-trial directions' (Aronson Recommendation 9) would ensurethat Courts have adequate powers to require the parties to use information technology for the


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efficient conduct of a trial, and should include explicit provision for the court to determine, asa matter of procedure, the form in which documents will be provided to the court, includingany computerised form.

In relation to computer-generated graphics, the Report recommends the adoption of reforms

concerning charts and summaries (such as Aronson's Recommendations 12-14) to ensure thatthey are admissible. A provision such as cl 33 of the Commonwealth Evidence Bill 1991(which gives the Court a discretion to require evidence to be presented in a summary form,and to provide copies of that summary to other parties) is desirable in relation to computergraphics. When exercising discretion to admit, the court should take into account the extent towhich any lack of access by the other parties to the computerised data and software used ingenerating the summaries may lead to that evidence having prejudicial, misleading or unfairtendencies or qualities.

Jury access to computerised information

The Report concludes that the effective use of information technology in trials must involveaccess by jurors to that technology in the jury room. There is some theoretical danger in

providing jurors with software to search and retrieve exhibits by various criteria (other thanmere exhibit number) that it could be considered that the jury might go 'beyond anexamination and evaluation of the evidence provided by [the exhibits], and would have hadthe purpose of gathering additional evidence' (Kozul v R (1981) 55 ALJR 377, per Gibbs CJat 381). Where the only retrieval criteria available through the software are such neutralmatters as exhibit number, witness name or date of tendering, no such argument couldsucceed.

The argument that computer-literature jurors might dominate the jury, while worthconsideration, seems less serious than arguments that literate jurors might have dominatedjuries when literacy was less common, or (as in most complex fraud trials today) that the juryis open to domination by numerate jurors. The provision of a complex and 'user hostile'retrieval program to a jury as the only means of accessing exhibits would certainly be unfairand allow computer-literate jurors to dominate, but the correct answer to that problem is forthe judge to ensure that any retrieval mechanisms provided to the jury are sufficiently simpleand 'user friendly' that no such problems arise.

The Report therefore recommends that where imaging technology is used to handle theexhibits in a trial, the jury should be allowed access to the computerised database of exhibits,

and an appropriate retrieval system. The trial judge should ensure that the retrieval softwareprovided to the jury is sufficiently simple and 'user friendly', so that the jury can effectivelyretrieve the exhibits that it needs, and that there is no undue dominance by computer-literate

jurors. The trial judge should also be responsible for ensuring that appropriate instructions inthe use of the retrieval software is given to the jury, and in a way which does not allowimproper access to the jury. If the jury is provided with access to the full transcript, (as somehave recommended), then there is no reason to prevent access to that transcript incomputerised form, but the judge should exercise considerable caution in approving softwarefor the jury which allows full free-text retrieval of transcript because of the inherent danger of

jurors misinterpreting search results. Steps must be taken to remove from the transcript anypart of the proceedings that were not heard before the jury, or to prevent the jury retrieving

those parts of the transcript. It should also be open to the judge to provide the jury with


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graphic summaries of evidence in computerised form, but this is also an area whereconsiderable caution is warranted.

A proposed new role for the AIJA - education and communication in court

technologies

The Report concludes that a national co-ordinating body is needed to disseminateinformation, experience and advice concerning the use of information technology by thoseinvolved in criminal trials. Subject to its obtaining sufficient funds to do so, the Reportrecommends that the Australian Institute of Judicial Administration (AIJA) should act as theco-ordinating body. An Information Technology Committee (IT Committee) of the AIJA,with suitably diverse membership, could provide the appropriate representative structure forall of the parties involved in the provision of court facilities and the conduct of trials. A smallInformation Technology Service (IT Service) should also be established as part of thenational co-ordinating body, to carry out all of its recommended functions, except thedevelopment of standards, on which matter it would instead provide expert advice. It should

be established with a limited duration (preferably three years) after which the need for thecontinuation of each of its services should be re-assessed.

The Report recommends a wide range of functions for the IT Service, many of which arealready being carried out by the two analogous bodies in the United States, the NationalCentre for State Courts (NCSC) and the Office of Automation and Technology of theAdministrative Office of the United States Courts. The IT Service should operate, for all

parties involved in Court computerisation: a national collection of both international andAustralian resources on Court computerisation; a central register of products/technologiesavailable to address specific problems of Court computerisation, including details of where

they may be inspected in operation; and a national central register of specialist consultants,their experience, products supported, reference sites, etc. These should be searchable fromanywhere in Australia, by inclusion as databases in a dial-up system, or by distribution ondisk or CD-ROM. The IT Service should also publish regular and detailed publications aboutcourt computerisation, run an annual or biennial specialised conference, operate an electronic`bulletin board' service for use by all users of court technologies, and encourage regularmeetings for key personnel involved in court computerisation and user groups fortechnologies with significant use in courts.

Law schools have a role to play. The IT Service should cooperate with one or more LawSchools to utilise computer laboratories for demonstration, teaching and research in the use of

court technologies. Such court technology laboratories should, where possible, be integratedwith Law School Moot Courts to demonstrate technologies in a courtroom setting. The ITService should assist the Association of Litigation Support Managers, and other interested

parties, to develop one or more standard sets of data relating to complex trials, so as tofacilitate demonstration, teaching or research into the use of document managementtechnologies. It should publicise and assist in distributing the standard data sets. Thedevelopment of courses on computerised litigation support (particularly post-graduatecourses) by tertiary institutions, and of continuing legal education courses, should beencouraged and assisted.

The IT Service should only provide such consultancy services as the IT Committee

determines are consistent with its other functions. It may provide consultancy services on afee-for-service basis. Such services should be limited to preliminary advice and planning,


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assistance in identifying a range of potentially appropriate products and services, andevaluations, but should not involve system implementation.

(The Report is available from the AIJA, 95 Barry St, Carlton South, Victoria 3053 for $20,plus an additional $20 if a copy in computerised form - DOS/Windows or Macintosh - is

desired.)

G Greenleaf and A Mowbray

Information Technology in Complex Criminal Trials

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