Criminal Jury Trials in 2030: A Law Odyssey
| Published date | 01 December 2014 |
| DOI | http://doi.org/10.1111/j.1467-6478.2014.00685.x |
| Date | 01 December 2014 |
JOURNAL OF LAW AND SOCIETY
VOLUME 41, NUMBER 4, DECEMBER 2014
ISSN: 0263-323X, pp. 551±75
Criminal Jury Trials in 2030: A Law Odyssey
Jacqueline Horan* and Shelley Maine*
`Strategic foresight' is a technique used by institutions to prepare for a
technology-charged future. It involves considering how the institution
might look in the future. In doing so, it enables the institution to
prepare for and achieve the preferred future. This article explores what
the process of strategic foresight has to offer common law criminal
justice systems, with a particular emphasis on the role of expert
evidence in criminal jury trials. A hypothetical vision for the future set
in 2030, which foresees the adoption of technological advances in the
courtroom, is compared and contrasted with processes from a 2012
murder trial. We examine how a well-designed digital courtroom could
enhance the delivery of expert evidence. Considering `alternative
future law scenarios' can illuminate what a legal system is likely to
need in times to come and can identify the necessary steps for
beneficial adaptation via research, policies, and training.
INTRODUCTION
In March 2014, the Lord Chief Justice of England and Wales acknowledged
that the justice system is in need of reform due to the retrenchment of the
state and the fact that there are aspects of the justice system that are no
longer up to the job. His thesis as to how we should approach reform is that
`we must be radical in our thinking.'
1
Lord Thomas urged law reformers to:
551
*Melbourne Law School, University of Melbourne, 185 Pelham Street,
Carlton, Victoria 3010 Australia
j.horan@unimelb.edu.au
This work was supported by the Australian Research Council (grant numbers LP0990833,
LP120100291), in collaboration with the project industry partners: the Australasian
Institute of Judicial Administration and the Australian and New Zealand Policing
Advisory Agency.
1 The Right Honourable Lord Thomas of Cwmgiedd, Lord Chief Justice of England
and Wales, `Reshaping Justice', paper delivered to the `Justice' organization (3
March 2014) 4, at
Speeches/lcj-speech-reshaping-justice.pdf>.
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draw on wide experience both national and international, from a wide and
diverse range of sources from within and outside the legal field, benefit from
the cross-fertilization of ideas that that brings, and ± of course ± carry out
proper evidence-based research.
2
He called for `evaluated ideas and proposals that stimulate debate, that go
further than those who are wholly or largely within the justice system might
consider. It is the bold who properly set the boundaries of the possible.'
3
This article takes on Lord Thomas's challenge by introducing a new
reform approach to the legal context. We also expand upon Lord Thomas's
reasons for reform. The impact of rapid technological and scientific change
on our legal system is another compelling reason why law reformers must be
more radical in their thinking.
We are living in an era of unprecedented and exponential technological
and scientific change, which brings both benefits and challenges to society.
One of the largest projects in modern science is the Human Genome Project:
the ability to rapidly sequence our DNA has accelerated biological and
medical research and discovery. However, DNA technology also creates
many ethical, moral, and social challenges. Whilst the recent emergence of
DNA testing has solved numerous crimes that occurred decades ago, it has
also highlighted the frailties of many of the traditional forensic sciences,
such as fingerprint analysis. The United States Innocence Project reports that
DNA testing has overturned 311 convictions, and in 152 of those cases the
true suspect has been identified.
4
Recent government reviews on the use of forensic expert evidence all
conclude that the forensic science system exhibits profound shortcomings,
including substandard presentation of expert evidence.
5
In the light of these
appalling reviews, Gary Edmond contemplates:
What should we do now, and how we should respond to decades of convic-
tions based on questi onable techniques a nd exaggerated incr iminating
opinions (mis)portrayed as `expert', `scientific' and/or `reliable', is far from
obvious . . . [b]umbling along, as we appear to have done for more than a
century, seems not merely misguided but, in the wake of the collective weight
of these (and other) reports, disingenuous.
6
552
2 id., p. 6.
3 id.
4 Innocence Project News a nd Information, `DN A Exonerations Na tionwide',
In n oc e n ce P r o je c t , at < h t tp : / /w w w .i n n oc e n ce p r oj e c t. o r g/ C o nt e n t/
DNA_Exonerations_ Nationwide.php>.
5
See, for example, Committee on Identifying the Needs of the Forensic Sciences
Community et al., Strengthening Forensic Science in the United States: A Path
Forward (2009) (`NRC Report'); The Fingerprint Inquiry, The Scottish Fingerprint
Inquiry Report (2011); Commission of the Inquiry into Pediatric Forensic Pathology
in Ontario, Inquiry into Pediatric Forensic Pathology in Ontario (2008); Law
Commission, Expert Evidence in Criminal Proceedings in England and Wales (2011).
6 G. Edmond, `What Lawyers Should Know About the Forensic Sciences' (2014) 36
Adelaide Law Rev. 1, at 2±3.
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In responding to Lord Thomas's call for a radical rethink on the delivery of
justice and Edmond's question, `What should we do now?', this article
suggests and explains a novel approach for law reformers to consider when
addressing the on-going problems encountered with our justice system. The
new approach is called strategic foresight. This is a technique used by
institutions outside the law to prepare for a technology-charged future.
Whilst the future is not predetermined, considering `alternative future law
scenarios' can illuminate what a legal system is likely to need in times to
come. It can identify the necessary steps for beneficial adaptation via
research, policies, and training.
Engaging with the law of the future is something law reformers have little
experience of. There is little forward-looking focus amongst legal institu-
tions.
7
The criminal justice system is steeped in tradition. It is predominantly
reactionary rather than proactive. A fundamental principle underpinning
common law systems is stare decisis. This requires judges to adhere to past
decisions of other judges (precedent) in order to maintain consistency in the
law. By its very nature, precedent does not engage with time horizons to
encompass future thinking. Some commentators have recently observed that
the criminal law and the legal profession risk redundancy by not `standing in
the future'.
8
The Hague Institute for the Internationalisation of Law (HiiL)
asserts that `[t]hinking about the future of law and the law of the future (and
what form it should/might take) is not a luxury, it is a necessity.'
9
We begin by explaining what strategic foresight is. We then explore its
utility to the justice system through an example. We focus on the common
law criminal justice system, with a particular emphasis on how best to
present expert evidence in the courtroom. Of all the evidence presented in a
trial, it is expert evidence that is likely to pose the greatest comprehension
challenge to the jury. On top of all the novel legal jargon that jurors are
expected to understand, expert evidence is likely to introduce a new set of
technical terms and foreign concepts. Evidence given by experts is, by its
nature, likely to challenge the jury's ability to understand, as a requirement
of expert evidence is that it is outside common knowledge. Furthermore,
trends in technology and science are set to create new challenges to the use
of expert evidence in the courtroom of the future.
This article provides an example of how to forecast `alternative future law
scenarios'. Based on currently available research and knowledge of the
provision of expert evidence in criminal jury trials, two `alternative future
law scenarios' are described; one based on reactive use of technology and the
553
7 S. Muller et al., Law Scenarios to 2030: Signposting the Legal Space of the Future
(2011) 8, at gement/media/HIIL_n18533_v1_Law_
Scenarios_to_2030_v1.pdf>.
8
N. Marsh et al., Strategic Foresight: The Power of Standing in The Future (2002)
7±10.
9 Muller, op. cit., n. 7, p. 6.
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other on proactive uptake of technology. These two trial scenarios serve as a
rudimentary illustration of how the strategic foresight process can be applied
to legal systems. By comparing and contrasting the two alternative law
scenarios, we have generated ideas for improving the presentation of expert
evidence in criminal jury trials. We argue that there is a pressing need for the
legal community to engage with how the future impacts upon their trade.
STRATEGIC FORESIGHT
Strategic foresight combines the elements of strategy, future studies, and
foresight; that is, `skillful management in attaining an end', via `perception
gained by looking forward' through the `examination of key trends and their
outcomes, with the hope of successfully influencing those outcomes.'
10
It is
a strategy used to assist institutions to identify where they might be going, so
that they can prepare for those eventualities. It is not about guesswork but
requires a deep understanding of the institution. Ideally, evidence-based
research underpins the process.
Strategic foresight has been described by its advocates as the power of
`standing in the future' to `go forward into the future, imagine what it might
look like, and then come back to the present . .. with new insights . .. [and]
create a view that is unrestricted by the present.'
11
Strategic foresight is
designed to provide alternative scenarios for the future. The `preferred
future' is then identified and strategically planned. Many successful govern-
ments and organizations, such as the oil company Shell Global, use the tools
of strategic foresight to anticipate, scope, and prepare for future challenges.
12
Global legal forums, such as HiiL, are also starting to recognize the potential
of this method for `innovating justice'.
13
The six critical steps that develop strategic foresight are `Framing,
Scanning, Forecasting, Visioning, Planning and Acting.'
14
The following
section describes each step. Issues relevant to the presentation of expert
evidence in criminal jury trials are considered in relation to each step.
554
10 Macquarie Dictionary (2013, 6th edn.); Marsh, op. cit., n. 8, pp. 11±14.
11 Marsh, id. pp. 8±9.
12 Shell Global, Shell Energy Scenarios to 2050 (2008), at < http://www.shell.com/
global/future-energy/scenarios/2050.html>; Marsh, id., pp. 16, 21.
13 See, for example, S. Muller et al. (eds.), The Law of the Future and the Future of
Law (201 1), at tp://w ww.fic hl.org /filea dmin/f ichl/d ocume nts/FI CHL_11 _
Web.pdf>; HiiL, `About HIIL' (2014), at .
14 A. Hines and P. Bishop (eds.), Thinking about the Future: Guidelines for Strategic
Foresight (2006) 4±8.
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FRAMING
`Framing' requires clear identification of the issues for which strategic
foresight is nee ded. It then requ ires the identif ication of the ma in
protagonists in the process and an evidence-based understanding of the
issues. The process of defining the issues at hand is assisted by clarification
of the organization's mission.
15
Expert evidence plays an important role in the prosecution of serious
crimes. The aim of expert evidence in a criminal jury trial is to assist the jury
to resolve issues of fact. If the jury misunderstand the evidence, or fail to use
it appropriately, this may lead to a miscarriage of justice. Poorly communi-
cated or misunderstood expert evidence can lead to poor decision making
and potentially compromise the criminal justice system.
16
High-profile
miscarriages of justices, such as the sudden infant death syndrome trials in
the United Kingdom, highlight problematic aspects of the presentation of
expert evidence, and have prompted public debate of the issue.
17
The public
debate has hig hlighted the need for new str ategies to ma nage the
presentation of expert evidence in criminal jury trials.
Complicating the debate is the introduction of new forms of expert
evidence into the courtroom, such as footwear mark analysis,
18
walking
gait analysis,
19
body and facial mapping.
20
Numerous government reports
into substandard expert evidence address the potential for such evidence
to compromise the criminal jury system.
21
With the proliferation of
expertise, it is imperative to ensure that the gap between juror compre-
hension and expert evidence does not exponentially and irretrievably
diverge, if the jury is to continue in its decision-making role.
22
Whilst
other issues, such as the admissibility of expert evidence, are important
and problematic contemporary issues, the focus of this exercise in
strategic foresight is to explore strategies to better manage the presenta-
555
15 id., p. 37.
16 B. Etter, `The Contribution of Forensic Science to Miscarriages of Justice' (2013) 45
Aus. J. of Forensic Sciences 368; J. Goodman-Delahunty and L. Hewson, `Enhanc-
ing Fairness in DNA Jury Trials' (2010) Trends and Issues in Crime and Criminal
Justice no. 392, at
tandi392.pdf>.
Queen [2010] 1 Cr. App. Rep. 8; Murdoch v. The Queen [2007] NTCCA 1, paras.
297, 300.
21 See, for example, Law Commission, op. cit., n. 5; NRC Report, op. cit. , n. 5.
22 I.R. Freckelton, and H. Selby (eds.), Expert Evidence: Law, Practice, Procedure and
Advocacy (2013, 5th edn.) 5 [1.0.20], 20±22 [2.0.20].
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tion of expert evidence in criminal jury trials so as to avoid miscarriages
of justice (the mission).
23
SCANNING
`Scanning is the process of looking internally and externally to identify what
is on the horizon that may impact the organisation relative to the issues
framed.'
24
The societal, technological, economic, environmental, and/or
political are areas that usually have the greatest impact externally. For
example, the wine industry might look at external trends in climate change,
demographic shifts, and disposable income. Internal trends of an oversupply
of red wine in the wine market would also be relevant. One case in point is
Australian winemaker `Brown Brothers', who purchased land in the predict-
ably cooler climate of Tasmania after considering the increasing global
warming temperatures in South Australian vineyards and the associated risk
to business.
25
Though external and internal trends are not always distinct, this section
will first look at a major internal trend within the criminal justice system,
before considering external trends outside the legal world. Viewing different
legal systems and how they deal with expert evidence and the configuration
and role of the jury can assist strategic foresight, by identifying viable
methods and alternatives as well as problematic areas to avoid.
Although all jurisdictions are relevant to a comprehensive study, the
following section will `scan' the French system as an example of a classic
inquisitorial model of decision making. Lord Thomas posed that `the
question of inquisitoriality, its merits, consequences for the rest of the justice
system, or its drawbacks . . .' should be explored.
26
Under the force of
globalization there will be increasing collision and interweaving of different
legal jurisdictions, fostered by immigration and the internationalization of
law.
27
This has already begun to happen where adversarial systems are
adopting inquisitorial processes and vice versa. Recent examples where
inquisitorial processes have been woven into the provision of expert
evidence in some common law civil jurisdictions will be canvassed.
556
23 See, for example, Law Commission, op. cit., n. 5; See, also, the body of work by
Gary Edmond as to the admissibility of expert evidence in the Anglo-American
world.
24 A. Hines, `Thinking about the future, Guidelines for Strategic Foresight', paper
presented at Management Forum Series, Executive Forum, Portland, Oregon (5
March 2008) 1±2; Hines and Bishop, op. cit., n. 14, p. 53.
25 ABC, `T aking o ur Temp erature' Catalyst, 15 No vember 2011, at < http://
www.abc.net.au/catalyst/stories/3633447.htm>.
26 Lord Thomas, op. cit., n. 1, p. 7.
27 Muller, op. cit., n. 7, pp. 7±13.
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1. Internal trends: The inquisitorial system
The French Cour d'Assises handles the most serious offences and uses a jury,
comprising six randomly selected citizens, one presiding judge, and two
assistant judges. Overall there is less reliance on oral evidence and more on
written documents, like expert reports. In the preliminary stage, a pre-trial
instructing judge frequently oversees the investigation, instigating experts'
reports, visits to crime scenes, additional evidence or confrontations between
witnesses, victims, and defendants.
28
Judges usually appoint an expert to a
case who has been chosen from a pre-set, official list of experts.
29
Expert
reports are circulated to the parties and then discussed at a meeting with the
instructing judge. At this meeting, the experts can be questioned and if the
parties are dissatisfied with the expert they can ask the court to appoint a
further expert.
30
Criticisms of the French approach include complaints that the official list
of experts can easily become outdated and incestuous, resulting in second-
class evidence. Although the parties may seek to question witnesses with the
leave of the presiding judge, the lack of confrontation through an adversarial
style cross-examination is argued to lead to expedient, outmoded, and/or
biased opinions. However the lack of cross-examination can be viewed as a
positive, since adversarialism can promote bias through partisanship by
experts.
31
Whilst a wholesale adoption of the French inquisitorial system is not on
the horizon for common law jury systems, the notion that a strict adversarial
system is no longer viable is well established in the common law world.
Civil and some criminal jurisdictions in Commonwealth counties have
introduced inquisitorial-style procedures in relation to expert evidence in
order to improve the quality and cost of the process.
32
Court-appointed
single experts, pre-hearing discussions, concurrent and consecutive evidence
are examples of the alternative processes now available.
33
557
28 M. Vranken, Fundamentals of European Civil Law (2010, 2nd edn.) 237; F.
Nagoreka et al., `Stranded Between Partisanship and the Truth? A Comparative
Analysis of Legal Ethics in the Adversarial and Inquisitorial Systems of Justice'
(2005) 29 Melbourne University Law Rev. 448, at 455±9; Code de proce
Âdure pe
Ânale
[Code of Criminal Procedure] (France) arts. 79±84, 156±169.
29 Code de proce
Âdure pe
Ânale, id., arts. 156±157, 160; B. McKillop, Anatomy of a
French Murder Case (1997) 50, 79±80.
30 J. Spencer, `The Neutral Expert: An implausible bogey' [1991] Criminal Law Rev.
106, at 108; Code de proce
Âdure pe
Ânale, id., arts. 156, 165±168; McKillop, id., pp.
29, 16, 50.
31 See, for example, I.R. Freckelton et al., Australian Judicial Perspectives on Expert
Evidence: An Empirical Study (2001) 2±4, 6, 23±9; M.N. Howard, `The Neutral
Expert: a plausible threat to justice?' [1991] Criminal Law Rev. 98, at 101±2.
32 New South Wales Law Reform Commission, Expert Witnesses (2005) 2, 48±63, 82.
33 Concurrent evidence is an Australian civil court innovation that has been piloted in
United Kingdom civil courts: see, for example, H. Genn, Manchester Concurrent
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The single-expert model was adopted in United Kingdom civil courts
following the Woolf law reforms
34
and embraced by several civil juris-
dictions in Australia.
35
However, research has suggested that jurors may be
less likely to scrutinize the evidence of a single expert adequately.
36
In 2013,
new criminal proceedings rules in England and Wales granted the court the
discretion to order that co-defendants be confined to a single expert in
criminal trials.
37
In pre-hearing discussions, opposing experts meet without lawyers with the
aim of preparing a joint statement for the court on the matters on which they
agree and disagree. The issues in dispute are narrowed which saves expensive
court time. Some commentators argue that pre-hearing discussions may lead
to a `bureaucratisation of truth' by denying the benefits of `full-blooded
adversarialism'.
38
They arguably add another layer of expense in the criminal
context, as there is already opportunity for opposing experts to know the
opposing case before trial, due to committal hearings and voir dire processes.
In England and Wales the 2013 criminal proceedings rules provide the judge
with discretion to order that experts partake in a pre-hearing discussion and
prepare a joint statement. Failure to comply with the judge's directions
empowers the judge to bar the expert from giving evidence at trial.
39
2. External trends
(a) Economic trends
The global financial crisis highlighted unexpected global banking vulner-
abilities. Governments were forced to stem systemic failures of financial
institutions, placing their nations on the brink of bankruptcy. The HiiL
predicts budget deficits in the ensuing decades as a result of economic
downturns.
40
As populations expand, government resources will be further
558
Evidence Pilot ± Interim Report (2012) 2±3; NSW Law Reform Commission, id.,
pp. 33±41.
34
Lord Woolf, Access to Justice: Final Report to the Lord Chancellor on the civil justice
system in England and Wales (1996), at
+/http://www.dca.gov.uk/civil/final/contents.htm>, recommendation 167 as adopted
in Part 35 of the Civil Procedure Rules 1998 (United Kingdom), Practice Direction
35, Experts and Assessors (13 June 2013).
35 For example, the Federal and Family Courts of Australia; NSW Law Reform
Commission, op. cit., n. 32, pp. 48±57.
36 N.J. Brekke et al., `Of Juries and Court-Appointed Experts: The Impact of
Nonadversarial versus Adversarial Expert Testimony' (1991) 15 Law and Human
Behavior 451, at 470.
1554 (L 16), Rule 33.7.
38 G. Edmond, `After Objectivity: Expert Evidence and Procedural Reform' (2003) 25
Sydney Law Rev. 131, at 155, 161 quoting Lord Woolf, op. cit., n. 34, ch. 13, para. 6.
39 MoJ, op. cit., n. 37, Rule 33.6.
40 Muller, op. cit., n. 7, p. 11.
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constrained. Funding for a legal system, where the average citizen cannot
afford to litigate, is unlikely to improve. Cuts to defence and public
prosecutions funding have already significantly impacted on which criminal
cases are pursued.
41
Courts are coming under further pressure to reduce costs.
42
Economic
pressures have prompted the demise of the civil jury system in the United
Kingd om and m ost Au stra lian s tate s. In st ark co ntra st num erou s
jurisdictions, such as Japan, Korea, Russia, and Mexico, are introducing or
reintroducing layperson participation into their court systems. This is in
direct response to the societal trend in those countries of a lack of com-
munity confidence in their legal systems.
43
This is but one brief example of
the interplay between economic trends, societal trends, and the legal system.
(b) Societal trends
One significant societal trend is the increasing availability of information.
The internet is a superhighway of information. Citizens have become avid
consumers of the written words, visuals, and search capabilities that the
internet offers them. This directly affects legal practices, customs and power
structures.
44
As the (former) Lord Chief Justice of England and Wales
observed:
Look, now, at our young. Most are technologically proficient. Many get much
information from the internet. They consult and refer to it. They are not
listening. They are reading. One potential problem is whether, learning as they
do in this way, they will be accustomed, as we were, to listening for prolonged
periods. Even if they have the ability to endure hours and days of sitting
listening, how long would it be before some ask for the information on which
they have to make their decision to be provided in forms which adapt to
modern technology? By modern technology I do not mean technology as we
understand it, but the technology which will be available to our successors in,
say, 2020 or 2025? I cannot begin to imagine the extent of the changes which
lie ahead.
45
559
41 Cuts to public legal funding are a worldwide trend. See, for example, Lord Thomas,
op. cit., n. 1, p. 6; R. Ackland, `Legal aid now just a band-aid' Sydney Morning
Herald, 17 May 2013, at
bandaid-20130516-2jp8j.html>.
42 Lord Thomas, id., p. 4; Justice McClellan, `The Future Role of the Judge: Umpire,
Manager, Mediator or Service Provider?', paper presented at University of New
South Wales (1 December 2011) 1±2, 5.
43 S. Landsman and J. Zhang, `A Tale of Two Juries: Lay Participation Comes to
Japanese and Chinese Courts' (2008) 25 UCLA Pacific Basin Law J. 179, at 188±9,
197.
44 Muller, op. cit., n. 7, p. 12.
45 Sir Igor Judge, President of the Queen's Bench Division, `The criminal justice
system in England and Wales ± Greater efficiency in the criminal justice system:
Time for change?', speech delivered in Sydney, Australia (15 August 2007) 16.
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It is fundamental to our mission that citizens that constitute the jury can
comprehend expert evidence. According to United States research, people
retain between 10±15 per cent of information presented orally and 65±87 per
cent of information presented visually.
46
Whilst contemporary society sur-
rounds itself with images,
47
the courtroom remains dominated by the word.
An Australian survey found that a third of the 132 forensic experts surveyed
did not use visual aids because the court system did not support their use.
48
A second significant societal trend is in education. There is a stark
contrast between how citizens have been taught to learn in school and their
workplaces and how they are told to learn in the courtroom. As part of their
schooling, citizens are encouraged to take control of their learning by
investigating the matter. If a student does not understand something, he or
she searches the internet, asks friends on Facebook or asks the teacher to
explain. Learning is seen as a social activity that involves student, teacher,
fellow students, family, and friends, where conversation and interaction is an
integral aspect of learning. This learning process is reinforced in workplaces
and stands in stark contrast to the learning process offered in the courtroom.
Jurors complain of wanting to ask questions but rightly sense that they are
discouraged from doing so.
49
Jurors are forbidden from seeking advice from
their friends or family or using the internet in relation to their decision-
making task. In some jurisdictions, jurors can be jailed for conducting their
own investigation.
50
Scanning the societal trends in education, learning, and communication
suggests that effective contemporary communication methods need to be
adopted into any law reform proposal if the aim is to improve the
presentation of expert evidence in criminal jury trials.
560
46 M. Cobo, `A Strategic Approach to Demonstrative Exhibits and Effective Jury
Presentations' (1990) 3 PLI/Lit 359; R. Seltzer, `Evidence and Exhibits at Trial'
(1990) 387 PLI/Lit 371, cited in D. Schofield and S. Mason, `Using Graphical
Technology to Present Evidence' in Electronic Evidence, ed. S. Mason (2010, 2nd
edn.) 139±40.
47 J. Horan and M. Taylor-Sands, `Bringing the Court and Mediation Room into the
Classroom' (2008) 18 Legal Education Rev. 197, at 197±8, 200.
48 R. Wheate, `Jury Comprehension and Use of Forensic Science', PhD thesis,
Australian Defence Force Academy, University of New South Wales (2007) 207±8.
49 P. Darbyshire et al., What Can the English System Learn from Jury Research
Published up to 2001? (2002) 47±8; W. Young et al., Juries in Criminal Trials, Part
Two ± A summary of the research findings, NZLC PP37 (1999) 31.
50
In NSW and Queensland a juror can be jailed for 2 years: Jury Act 1977 (NSW) s.
68C; Jury Act 1995 (Qld) s. 69A. The Law Commission in England and Wales
has recommended a statutory offence along the same lines: Law Commission,
Contempt of Court (1): Juror Misconduct and Internet Publications (2013), at
misconduct.htm>.
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(c) Scientific trends
DNA technology is perhaps the most significant scientific trend that impacts
upon our mission, as DNA profiling evidence is an increasingly vital aspect
of expert evidence in the criminal justice system. DNA technology has broad
applications for policing, the gathering, analysis, and presentation of evid-
ence, as well as crime prevention, criminal rehabilitation, and punishment.
51
Crime-scene contamination, degradation, cleaning, and budget limitations
can all contribute to the destruction of evidence.
52
However, the develop-
ment of hand-held meters for instance, would allow police to get DNA
results at the crime scene, thereby expediting identification of suspects and
overcoming the difficulties of fragile and perishable crime scenes.
53
Identifi-
cation of known and unknown suspects may also be built from DNA
attributes such as height and colouring, focusing the investigation and
conserving resources.
54
The hope is that DNA will expedite crime solving
and eliminate costly delays.
With any advance in science or technology there are associated risks.
There is concern that DNA evidence has a `falsely exalted infallibility'
which rates much higher than all other evidence in the minds of jurors.
55
Evaluating these kinds of risks should not be overlooked in the search for a
genetic silver bullet.
(d) Technology trends
Europe's leading futurist, Ray Hammond, predicts that even though the last
century produced cars, the computer, and the internet, there `will be more
technological change in the next two decades than occurred throughout the
whole of the last century.'
56
Technological advances are likely to lead to
new forms of crime prevention and suspect identification, and supplant some
561
51 S. Inayatullah, `Alternative Futures of Crime and Prisons' in Muller, op. cit., n. 7, p.
703.
52 R. Wheate, `The Importance of DNA Evidence to Juries in Criminal Trials' (2010)
14 The International J. of Evidence & Proof 129, at 142±3; D. Schofield, `Graphical
Evidence: Forensic Animations and Virtual Reconstructions' (2009) 41 Aus. J. of
Forensic Sciences 131, at 131±2.
53 See, for example, 3rdTechAdvancedImaging, `3D Products for Law Enforcement
and Security Applications', at
`The Coming Paradigm Shift in Forensic Identification Science' (2005) 309 Science
892; D. Cracknell, `Roadside DNA tests planned' Telegraph, 14 December 2000, at
planned.html>.
54 G. Turbett, `In Defense of DNA: A Scientist's Perspective' (2001) 25 Alternative
Law J. 177, at 177±8.
55 Wheate, op. cit., n. 52, pp. 129±30.
56 R. Hammond, The World in 2030 (2012, 2nd edn.) 32.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
existing expert, jury, and judicial functions.
57
Whilst the offerings of digital
technology are prodigious, we focus on one imminent offering that promises
great things for the criminal justice system: 3D virtual environments and
their use as a visual aid in the courtroom.
3D digital technology is already used in computer games, virtual worlds
58
and movies and is set to explode into `super-web' delivered holographic
images by 2030, which will create virtual experiences nearly indistinguish-
able from reality.
59
`It has the look and feel of being in the same room
together.'
60
Mobile 3D images of a human being can now be beamed across
the world instantly and into any courtroom. A high-definition camera films
the expert. In the courtroom, a smart optical projection system creates a
virtual presence holograph of the expert. The expert sees the entire
courtroom on a big screen, facilitating a real-time dialogue.
The `digital natives' of 2030 will also expect to see 3D crime scenes, just
as juries now expect scientific evidence.
61
Such digitalization is already
assisting forensic teams. The capacity to visually and scientifically capture a
crime scene before it becomes degraded is essential to policing and evidence
gathering. 3D laser scanners are currently used to provide digital scans and
measurements that form the basis of 3D virtual environments.
62
3D crime scenes are slowly being introduced into the courtroom and
proving their ability to explain complex evidence clearly and efficiently. For
example, one English trial involved the death of a motorcycle policeman
when he was forced off the road by the defendant's car. Based on the actual
measurements of the one kilometre stretch of road, location of vehicles, and
landscape features, over 300 items of evidence were accurately scaled and
positioned within the virtual road reconstruction. A life-like appearance was
achieved through using photographs to `texture map' the animations. The
jurors could individually examine and identify all the items at their own
pace.
63
562
57 See, for example, Inayatullah, op. cit., n. 51, p. 703; N.M. Ritter, `Preparing for the
Future: Criminal Justice in 2040' (2006) 255 National Institute of Justice J., at
Justice, National Institute of Justice Annual Reports (2005 and 2011); R. Susskind,
Tomorrow's Lawyers: An Introduction to Your Future (2013) ch. 10.
58 Second Life, What is Second Life? (2012), at
59 Hammond, op. cit., n. 56, pp. 67±8.
60 Chief technology officer of Telstra, as quoted in J. Metlikovec, `Telstra rolls out
hol og ra m fo r sh arp i ma ge ' He ra ld S un, 2 8 Ma y 20 08 , at < ht tp ://
www.telepresenceoptions.com/2008/05/telstra_rolls_out_hologram_for/>.
61 D. Shelton et al., `A Study of Juror Expectations and Demands Concerning
Scientific Evidence: Does the ``CSI Effect'' Exist?' (2006) 9 Vanderbilt J. of
Entertainment and Technology Law 331, at 362.
62 3rdTech, op. cit., n. 53; Schofield and Mason, op. cit., n. 46, pp. 143±50.
63 Rv. Walters (unreported, Nottingham Crown Court, Hunt J, 2 December 2002), as
described in D. Schofield, `Animating Evidence: Computer Game Technology in the
Courtroom' (2009) 1 J. of Information Law and Technology 1, at 12.
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Virtual realism also aids in retaining audience attention and memory
through greater `immersion' and `emotional connection' with the events.
However, there are risks associated with virtual reconstructions. Any
inaccurate or biased data input, from witness statements, forensics or time-
lines, could lead to unjust outcomes. Other concerns include the mes-
merizing effect on the viewer.
64
However, monitoring the impact of such
biases is not new to the courtroom. Research has begun on the biasing effect
of using brain images in court and recent findings suggest that such images
are less prejudicial than feared.
65
Further study and research on the effects of
virtual reconstructions in the courtroom is needed.
FORECASTING ALTERNATIVE FUTURES
The `forecasting' step requires creation of alternative futures, based on the
identified underlying trends. Whilst there are many plausible alternative
future scenarios, this section will focus on two contrasting scenarios. Both
are based on strong themes that emerge from the current literature coupled
with the internal and external trends discussed above.
The alternative law scenarios are both set in 2030. The date was
arbitrarily adopted from the popular text The World in 2030, by futurologist
Ray Hammond.
66
Scenario one is based on a real murder trial that the
authors observed in 2012.
67
Given that the law and the legal profession
remain reactive rather than proactive and the wheels of justice grind slowly,
there is every likelihood that a trial in 2030 will be run in much the same
way that this trial was run in 2012. In discussing this evidence-based
scenario and reflecting upon the manner in which the expert evidence in this
trial was presented, we have rare insight into what the jurors in this trial
thought of the expert evidence. The 12 jurors on this trial were surveyed
immediately following their verdict. We also have the benefit of the views of
one of the jurors, the trial judge, the prosecutor, the defence counsel, and two
experts that we interviewed immediately following the trial.
68
The quad-
563
64 D. O'Flaherty, `Computer-Generated Displays in the Courtroom: For Better or
Worse?' (1996) 4 Web J. of Current Legal Issues 5, at
1996/issue4/oflah4.html>.
65 A.L Roskies et al., `Neuroimages in court: less biasing than feared' (2013) 17
Trends in Cognitive Sciences 99, at 100.
66 Hammond, op. cit., n. 56, pp. 55±8.
67 We have simplified and slightly modified the facts of this case in order to preserve
anonymity.
68 This case study is part of an Australian Research Council Linkage grant project
called the Expert and Jury Project. The project involved surveying and interviewing
jurors, judges, barristers, and experts from 55 Australian criminal jury trials,
regarding their perceptions of the expert evidence. Dr. Jacqueline Horan, Professor
Ian Freckelton, Professor Jane Goodman-Delahunty, Dr. Blake McKimmie, and
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rangulation of views that this case study offers provides a unique opportunity
to gain a factual understanding of the expert evidence process. While a single
case is not indicative of any overarching trend, it can act as a thermometer
and illuminate real problems identified by different stakeholders.
Scenario two envisages the same murder trial in 2030 where there has
been a fast uptake of technology by the legal system in the interceding years.
This hypothetical scenario is based on the ideas generated from the survey
and interview participant responses in the case study taken from the Expert
Evidence and Criminal Jury Trial Project and used in scenario one. The
scenario is also underpinned by the research and the social and economic
trends discussed earlier in this article.
1. Scenario one: a slow up-take of technology
(a) The trial
Scenario one is based on a murder trial that took place in an Australian
Supreme Court. In the courtroom, expert witnesses were required to stand in
a witness box. Seperated from them by a great expanse, the jury sat in stiff,
wooden church-like pews. Whilst the court website boasted a range of
courtroom technologies and skilled staff to facilitate the use of technology in
litigation, there was little sign of such technology inside this courtroom. Due
to the poor acoustics, resulting from the soaring ceilings and hard surfaces,
the jury had access to headphones to hear the proceedings. There was a
computer in front of the judge, his staff, and each lawyer but not in front of
the decision makers, the defendant, or in the witness box. In architecture,
design, language, and process, this criminal trial harked back to antiquity
rather than towards the future.
69
The defendant was charged with, but denied, murdering the victim at the
first crime scene and dumping the body at the second crime scene. The case
was a combination of circumstantial evidence and direct evidence from a key
prosecution witness to the aftermath of the murder. Given the lack of direct
evidence of the murder, the expert forensic evidence was vital to supporting
the key prosecution witness's version of events. The only thing that linked
the victim to both murder scenes was the expert evidence. The trial lasted
almost two months. Evidence was primarily oral. The jury was referred to
over 100 exhibits.
The jurors were permitted to take notes and were given one paper copy of
the transcript. At the beginning of the trial, jury members were told that they
564
Profes sor Mar k Israe l joine d with th e Austr alasi an Inst itute o f Judic ial
Administration and the Australia and New Zealand Policing Advisory Agency for
this project.
69 A significant number of murder trials in Australia are conducted in such heritage
courts.
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could forward written questions to the judge. The jury remained quietly
attentive during proceedings and few questions were asked. Lengthy delays
were endured when video recordings were played to the jury and the court
staff had to set up the dated equipment and time codes to avoid showing
inadmissible evidence.
Several experts attended court and gave evidence. A qualified forensic
expert identified the body at the second crime scene. This expert referred to
hand-sized photographs of the evidence; however, this visual aid was too
small for anyone other than the expert to see and follow.
70
Competing DNA
expert evidence was presented. The prosecution asserted that DNA linked
the alleged murder weapon to the defendant and linked the victim to the
scene of the murder.
71
A ballistics expert gave an oral explanation about the
operation of the murder weapon.
The defendant was found guilty of the murder. A pre-sentence hearing
was conducted where the judge listened to victim impact statements that
were read out in court and heard psychological expert evidence from the
defence. The defendant was sentenced to spend a few decades in a high
security prison.
(b) Perceptions of the expert evidence by key stakeholders
Immediately following the jury verdict, all twelve jurors completed a survey
about their perceptions of the expert evidence in the murder trial. The trial
judge, the pros ecutor, defen ce counsel, tw o experts, and on e juror
volunteered to participate in an interview. Based on this feedback, a number
of common themes were identified.
None of the jurors complained that the expert evidence was too technical,
but they wanted more information. One juror explained that the jury was
dissatisfied with the extent of the evidence provided by the ballistics expert.
Whilst the jurors were not provided with the expert reports, five of them said
that they would have liked to have received a copy of the reports. Those five
jurors were generally dissatisfied with the lack of visual aids provided to
them. Two jurors wanted a video showing how the murder weapon
worked.
72
One juror asked for computer printout results in order to explore
the possibility of issues regarding sample amplification in the DNA testing
process. Another asked for DNA test visualizations and photographs of
luminal tests.
565
70 Use of hand-sized photographs by the Crown in this jurisdiction is common
procedure.
71 Of the nine murder trials in this jurisdiction that were part of this empirical study,
six involved DNA expert evidence.
72 The empirical study involved five trials with ballistics expert evidence. In none of
these cases was a video used to demonstrate how the weapon worked. Usually,
photographs of the weapon and cartridges are shown to the jury and discussed. In
one case, the expert demonstrated how the weapon is loaded and fired in court.
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Two of the jurors wanted to ask questions of the DNA expert but did not
do so because they did not know if jurors could ask questions, and were not
confident that questions were allowed.
The jury reported that they referred to the transcript frequently and that it
was very helpful. One juror noted that the jury's task would have been easier
if they had received an electronic copy of the transcript as well. At one stage,
the jury wanted to refresh their memory of a judicial instruction. The jury
spent a long time looking for it when a search engine could have found it
within seconds.
Not only did many of the jurors want more visual aids but they also noted
that when visual aids were used they were not used well. In particular, one
juror explained that, at times, the jurors were `treated like idiots' and the
process was unnecessarily `contrived'; for example, the jury received written
summaries of mobile phone calls that contained numerous mistakes. The
interviewed juror offered the following solution:
it would actually make so much more sense that if they want to put exhibits
forward, that rather than having to all carry in jury books, backwards and
forwards and a bunch of photos and all those sorts of things, if you just
exposed that information from a server to an iPad then the jury could easily
just walk in and out with their Court-supplied iPads that then only provides
you access to the information that you're supposed to see at that particular
point.
The DNA expert, when interviewed, also complained about the absence of
visual aids in this trial. This expert prefers to begin the evidence with a DNA
PowerPoint slideshow that has been developed by the forensic organization
in this jurisdiction, specifically for juries. Not only does the PowerPoint aid
jurors' understanding of the DNA evidence, but it also acts as a useful
prompt for the expert. The prosecutor had decided against using the DNA
PowerPoint slideshow to educate the jury, preferring the `old fashioned
way', which the DNA expert and the trial judge considered to be a mistake,
as this evidence pertained to a contentious issue in the case.
73
The DNA expert found the height and position of the witness box to be
intimidating and awkward as there was nowhere to put documentation. The
expert felt distant from the jury. In over a dozen trials, this DNA expert had
never had a juror question but explained: `I'd love to have questions from the
jury. I think that would be the best way for me to really help them under-
stand.' This expert complained of lack of access to the prosecutor prior to the
trial. The expert was not given enough time to look at the opposing expert
report and suggested that it would have been ideal if, during the opposing
expert's evidence, the prosecution DNA expert sat next to the prosecutor and
passed notes to assist in an effective cross-examination. This expert also
566
73 Despite the availability of the PowerPoint slideshow in this jurisdiction, none of
DNA experts used this visual aid in the six murder trials that are part of this
empirical study.
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wanted to be able to `hammer out the science' before the formal jury trial,
with the opportunity to challenge an opposing expert's opinion at a pre-trial
meeting.
The forensic expert described the courtroom environment as `always
somewhat daunting'. Unlike the DNA expert, this expert had the benefit of a
joint meeting with both barristers, which prepared the expert and the
barristers well. That expert believed that the jury should be able to ask
questions, as students in a lecture can: `I would like to know if what I am
saying is not clear'. This expert assumed that the expert report that was
prepared was provided to the jury (it was not) and lamented that the visual
aids used were substandard. The expert believed that it would have been
better to blow up the photographs on a large screen and use a laser pointer to
pinpoint specific parts of the photograph in issue.
The prosecutor supported greater use of visual aids, laser pointers, iPads,
and large screens in criminal jury trials; however none of these technological
aids were used in the case at hand. The prosecutor would have liked `to have
a conference with everyone but [explained] you don't get time and you don't
get paid for it.' The defence barrister thought it was very important that the
jury should ask questions and was surprised that they didn't in this case. This
barrister thought that the jury should not get copies of expert reports, as they
are too difficult for laypeople to understand. The defence barrister noted that
pre-trial conferences with experts are beneficial, particularly in this case, as a
mistake made in one expert report could be corrected before trial. Whilst the
trial judge was not in favour of the jury asking questions or having a copy of
the expert reports, the judge was strongly in favour of providing the jury with
the DNA Pow erPoin t slides how, exp lanato ry chart s, and blo wn-up
photographs.
(c) Commentary
The main theme emerging from the juror responses was that the jurors were
not overwhelmed by the amount of evidence provided. On the contrary, they
wanted more information delivered in an easily digestible form. There are
two aspects to this jury desire for more information. First, jurors want the
lawyers to move away from the traditional oral delivery to a more visual
presentation of the evidence. They wanted the expert reports, original docu-
ments, a searchable transcript, and good-quality visual images, to comple-
ment the expert evidence. Secondly, the jurors wanted to be able to ask
questions when the barristers fell short of providing them with the informa-
tion they felt they needed. The jurors' opinions in this trial are consistent
with findings of other jury research.
74
Experts in this trial suggested that they
would be assisted by juror questions. In sharp juxtaposition to the experts'
567
74 J. Horan, Juries in the 21st Century (2012) 74±90.
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and jurors' views, were the actions of counsel during the trial. Juror
questions were not encouraged and visual aids were not used.
The underlying drivers that have contributed to this slow up-take of
technology scenario, as identified by the stakeholders were:
(i) a lack of funding by governments to upgrade court buildings and
technology;
(ii) a lack of funding for both parties, resulting in limited pretrial
preparation with experts and poor trial time management;
(iii) a lack of relevant skills to deal with the technology;
(iv) conservative views of the legal process; and
(v) a reluctance of the legal profession to embrace a new paradigm away
from the traditional oral rhetoric and adversarial approach towards a
more collaborative and visual presentation.
2. Scenario two: a fast up-take of technology
(a) The trial
In this hypothetical scenario, we used the same facts from the murder trial in
scenario one and only altered the courtroom and its inhabitants, who were all
given a technology-based makeover. The goal was to forecast an alternative
future for criminal jury trials. From every aspect of this imaginary court-
room, you could hear and see everyone and everything in three dimensions.
Time was not lost on repeating the evidence, and the quality of under-
standing immediately benefited from the simple improvement in acoustics.
Each juror was provided with an electronic tablet.
75
Particular items could
be easily accessed including:
(i) a well-labelled map of the courtroom and its main protagonists;
(ii) written explanations of the role of the jury and processes including
how to ask questions and why they shouldn't conduct their own
research;
(iii) an electronic notepad that each juror could password protect;
(iv) a video transcript in time- and word-searchable form;
(v) a well-labelled copy of written exhibits;
(vi) a written version of the charges;
(vii) a plain-language summary of basic legal principles and definitions;
(viii) copies of all expert reports, written with the jury in mind;
(ix) photographs of witnesses, their names, and the nature of their
evidence;
568
75 See, for example, Rv. Dowding and Grollo [1999] VSC 497, as described by A.
Wallace, `Technology and the Judiciary: The Use of Technology in the Criminal
Trial Process', paper presented at the National Outlook Symposium on Crime in
Australia, Canberra (21±22 June 2001) 8. Juror electronic tablets have been trialled
in England and Australia.
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(x) a written guide to jury deliberations;
(xi) after discussions with the parties, a custom-designed question trail
with the facts and law of this case converted into a set of questions for
the jury to work through during deliberations.
76
Each witness had at his or her fingertips all kinds of technology through an
electronic tablet with access to all the relevant exhibits and reports. Laser
pointers were used to highlight particular aspects of the high-quality
photographic images that were projected onto a large screen.
The court chose the experts in this case from a large pool of international
experts. As the ballistics evidence was crucial, the court appointed the world
expert on the topic. The ballistics expert appeared before the jury via a
holographic link-up from London. The quality of the evidence was not lost
in the holographic presentation due to perfect picture quality and clear
audio. Not only did the court have the benefit of the best available evidence
but the efficiencies of this remote link-up extended beyond the courtroom;
the time saved by this expert not having to travel and wait in court resulted
in a cheaper expert service and freed up the expert's availability for other
trials.
The murder scene was accurately represented as a 3D holographic
display, incorporating all the evidence that was available and highlighting
any unresolved issues. The expert's evidence in relation to the holographic
display was concise because contentious issues connected with the use of the
visual aid were discussed prior to trial, through a collaborative but rigorous
process. The person that prepared the murder scene simulation prepared a
report, which documented the mathematical model used in preparing the
visualization, the facts relied upon to create the simulation, and explained the
developmental stages of the visualization. The judge checked the report to
ensure that the underlying authenticity and reliability of the methods used to
create the simulation were appropriate.
77
Because of a controversy over the DNA evidence, the DNA experts
participated in a pre-trial discussion. As a direct result, the first expert's
report was slightly modified. Consequently, the second expert was not called
to give concurrent evidence as all experts were in agreement on the issues.
78
The first DNA expert began the presentation with a twenty-m inute
cognitively sequenced multimedia tutorial. This explained DNA profiling
and the significance of a random match to the jury. The jury's understanding
of the statistical information presented as part of the tutorial improved once
they had watched the tutorial.
79
569
76 See, further, Horan, op. cit., n. 74, pp. 77, 101, 106, 149.
77 id., p. 149.
78 In the Australian Expert and Jury Project, one of the 55 trials used this technique to
good effect.
79 See Goodman-Delahunty and Hewson, op. cit., n. 16, pp. 1±4.
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The forensic expert used a hologram of a human body to quickly identify
the location of the body parts in question.
80
A crime scene examiner then
took the jury on a journey through a simulation of the second crime scene.
Based on the crime scene survey data (such as the actual measurements and
location of objects), items of evidence were accurately scaled and positioned
within the crime scene reconstruction animation. Photographs were used to
`texture map' the animation in order to give it a lifelike appearance. Over a
kilometre of crime scene was created in the animation with almost 100 items
of evidence positioned where they were found. The lawyers didn't have to
`rummage through 30 boxes looking for exhibits and documents' as the
simulation `allow[ed] you to effectively integrate video and documentary
evidence.'
81
The crime scene simulation gave the jury an experience of
space, motion, and time, but they did not dwell on the technology.
82
The
improved comprehension of the spatial relationship of each item of evidence
enhanced the juror's comprehension of the facts of the case.
83
Whilst the crime scene simulation was very detailed, irrelevant material
could be removed so as not to overwhelm the jurors.
84
This was done in prior
consultation between the parties. All lawyers briefed for this trial were
schooled in the interpretation of simulations as part of their continuing legal
education. They were capable of interpreting visual images, in order to make
sound tactical decisions about when to use such aids and what kinds of aids
were best to use. The lawyers rigorously tested the simulation before
presenting it to the jury. All the lawyers were familiar with the technology so
they had:
570
80 See, for example, J. March et al., `Three-Dimensional Computer Visualization of
Forensic Pathology Data' (2004) 25 Am. J. of Forensic Medicine and Pathology 60,
at 61, 69.
81 P. Marcotte, `Animated Evidence: Delta 191 Crash Re-created through Computer
Simulations at Trial' (1989) 75 J. of the Am. Bar Association 52, at 54.
82 This observation is based on the results of a 2008 mock trial held in an Australian
Supreme Court. A range of forensic animations relating to a terrorist attack was
shown to the juries. Whilst the jurors found the animations useful, they did not dwell
on the technology and the forensic animations had no significant prejudicial impact
upon their deliberations: J. Goodman-Delahunty and K. Wakabayashi, `Adversarial
Forensic Science Experts: An Empirical Study of Deliberation' (2012) 24 Current
Issues in Criminal Justice 85; and J. Goodman-Delahunty et al., `Evidence on the
Holodeck: Jury Responses to Computer Simulations', paper presented at the 4th
Law & Technology Conference, Australian Institute of Judicial Administration,
Sydney, Australia (27 June 2008).
83 Based on the findings of a 1992 study where the use of visual aids improved
comprehension by up to 650 per cent. As cited in R. Krieger, `Now Showing at a
Courtroom Near You . . . Sophisticated Computer Graphics Come of Age ± And
Evidence Will Never Be the Same' (1992) 78 J. of the Am. Bar Association 92.
84 I. Biederman and G. Ju, `Surface versus Edge-Based Determinants of Visual
Recognition' (1988) 20 Cognitive Psychology 38.
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the mental flexibility to think visually as well as verbally: to recognise when a
picture captures some crucial part of the theory of the case, making a thousand
words unnecessary, or, when called upon, to be able to translate one's visual
responses into words that colleagues, opponents, judges, and jurors can
understand.
85
The persuasive power of counsel's closing argument was enhanced by the
effective use of the forensic simulations. Evidence was retrieved instanta-
neously, without interrupting the flow of the argument. Counsel zoomed in
and out on evidence to emphasize a particular piece of evidence and to
ensure that the jury could see from their vantage point. Objections taken in
the courtroom, and lines of questioning around this simulation, highlighted
that the barristers could identify multiple meanings generated by pictures
with the same ease that they did with identifying multiple meanings of
words.
86
Adversarial techniques still played an important role in this
technology-enhanced trial.
Whilst the preparation of the simulations took time, the more expensive
court time needed to take the jury verbally through the crime scenes resulted
in a significant cost saving. This trial took two weeks rather than almost two
months. The time savings meant that the evidence was fresher in the minds
of the jury at the time that they deliberated. Deliberation time was slightly
shorter but far more rigorous and efficient as the jury had all they needed at
their fingertips. During deliberations, the jury walked through the crime
scene simulation at their own pace. Jurors placed their finger on an item of
debris and could access further data about that item.
87
This conscientious jury formulated many appropriate questions, assisted
by the court. When the jury asked questions during deliberation time, the
judge was instantly able to reach beyond the courthouse walls via video link
with the barristers, the defendant, and the experts. Avoiding reconvening the
court resulted in shorter response times and significant cost savings.
The jury convicted the defendant. Whilst scenario two employed the
traditional jury of twelve to bring in the verdict, the following hypothetical
sentencing process highlights that alternative forms of jury decision making
may be viable and should be on the horizon for our law reformers to
contemplate.
The sentencing jury was composed of the trial judge, a behavioural
expert, and the jury foreperson. Pressure from international human rights
organizations, which assert that the basis for a fair trial mandates written
reasons for a legal decision,
88
resulted in the sentencing jury providing
571
85 N. Feigenson and C. Spiesel, Law on Display: The Digital Transformation of Legal
Persuasion and Judgment (2009) 217.
86 O'Flaherty, op. cit., n. 64.
87 Description is based upon the trial of Rv. Walters, as described in Schofield, op.
cit., n. 63, pp. 1,12±13.
88 See, for example, Taxquet v. Belguim (ECtHR, Grand Chamber, Application No
926/05, 16 November 2010); S.C. Thaman, `Should Criminal Juries Give Reasons
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
reasons for its decision. The delivery of the sentence was streamed online
and in real time.
(b) Commentary
The underlying drivers for the fast up-take of technology scenario were:
(i) governments funded upgrades to the court buildings and in particular,
to the provision of technology in the courtroom;
(ii) pre-trial preparation doubled but resulted in the more expensive trial
time being more than halved. Budgets were redistributed to reflect the
front loading of costs and cost savings at the trial phase;
(iii) all lawyers and court staff were adequately skilled in visual
communication and courtroom technology;
(iv) innovative attitudes replaced conservative views of the legal process
as globalization encouraged learning from other jurisdictions;
(v) the barristers welcomed jury questions, thus ensuring that their jury
communication was more effective and efficient;
(vi) visual aids were embraced by the legal profession resulting in
improved communication and trial-time savings; and
(vii) improved courtroom communication strengthened the quality of
verdicts. This had the flow on effect of securing community confidence
in the justice system.
Specific drivers for the sentencing scenario included the need for each
jurisdiction to comply with international standards for a fair trial. Another
contributing factor was the growing trend around the world of introducing
mixed juries, where laypeople and judges decide legal matters together.
89
VISIONING THE PREFERRED FUTURE
`Visioning' is the fourth step in the `strategic foresight' process and requires
an organization to decide what it wants to be in the future. Visualizing helps
facilitate understanding and the implications of certain actions or lack of
action, by questioning and challenging assumptions. `If this, then what?'
90
This section considers what is needed to get to our preferred scenario.
An ideal future secures a form of lay participation in the criminal justice
system in order to maintain community confidence in its laws. Whilst we
could follow the lead of other jurisdictions such as Japan and introduce a
mixed jury, the future for common law jurisdictions is most likely a jury in
572
for Their Verdicts?: The Spanish Experience and the Implications of the European
Court of Human Rights Decision in Taxquet v Belgium' (2011) 86 Chicago-Kent
Law Rev. 613; M. Coen, ```With Cat-Like Tread'': Jury Trial and the European
Court of Human Rights' (2014) 14 Human Rights Law Rev. 107, at 120±7.
89 Horan, op. cit., n. 74, p. 205.
90 Hines, op. cit., n. 24, p. 6; Hines and Bishop, op. cit., n. 14, p. 141.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
its present form. Research suggests that juries of twelve citizens `enjoy
strong public support because they have long been an accepted part of the
political and legal landscape in common law countries.'
91
Scenario two is clearly the preferred future. Advanced technological
policing would allow swift processing and analysis of the crime scene and
identificat ion of the deceas ed and the defen dant. Using 3D vi rtual
holographic modelling, the crime scene would be recreated with input from
the defence, prosecution, and experts. Preparing forensic animations clarifies
for both parties the facts before the trial begins, rather than after the
prosecution has presented their case. This is a great opportunity to either
induce a plea of guilty or induce a withdrawal of some or all of the charges.
This theory has already been used to good effect in a few reported cases
where animations have been used. For example, in a culpable driving trial in
the United States, a forensic simulation of the car accident was used to show
that the accident was unavoidable due to an uncovered manhole on the road,
thereby reducing the defendant's culpability.
92
If the 3D modelling does not instigate a plea of guilty prior to trial, a fast
and interactive trial using a virtual courtroom would ensure greater accuracy
as well as resource efficiency and trial time reduction. Technology would
assist jurors to be proactively engaged during the trial, and jurors would not
be discouraged from asking questions in order to clarify the evidence.
Importantly, the fundamental principles of our current justice system would
be respected by maintaining the presumption of innocence, the right to cross-
examine witnesses, and the heavy burden of proof on the prosecution.
93
PLANNING AND ACTING
The next step is to consider how we ensure that scenario two becomes the
reality. Planning and acting are the final two steps. Planning involves looking
at the gap between where an organization is and where it wants to be, and the
steps needed to move in that direction. For instance, what should the
organization `start doing, stop doing or continue' to do?
94
Acting is concerned
with how the plans (once developed) are implemented, and the com-
munication required with any stakeholders who would be affected. It
considers the processes that need to change and methods to evaluate progress.
Recognizing the need for a new legal paradigm is the first step. If `we
don't know that we don't know', then nothing can change. The scientific
573
91 V.P. Hans, `Jury Systems Around the World' (2008) 4 Annual Review of Law &
Social Sciences, 275, at 275±6, 282±3.
92 People v. McHugh, 124 Misc 2d 559 (NY Sup Ct, 1984).
93 G. Edmond and A. Roberts, 'Procedural Fairness, the Criminal Trial and Forensic
Science and Medicine' (2011) 33 Sydney Law Rev. 259, at 359±60.
94 Hines, op. cit., n. 24, p. 7; Hines and Bishop, op. cit., n. 14, pp. 169, 189.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
experts in scenario one appeared to appreciate the benefits of utilizing
technology, but they received pushback from the lawyers, so criminal jurors
continue to operate in sub-standard work conditions.
Once the need for a new legal paradigm is established, the first matter on
the `to-do list' requires a collaborative effort by all stakeholders in a criminal
justice system to engage in a comprehensive strategic forecasting process.
The aim of this article is to illustrate the need for such a process and provide
a brief example of what such a process might look like.
The mini-strategic forecasting process undertaken in this article suggests
that there are two key drivers that will heavily influence how the future jury
trial might look. Legal systems must first and foremost become more cost-
effective. Secondly, courtroom communication must be improved in order to
preserve high-quality decision making and the consequent trust of the
community. The key to satisfying both of these drivers lies in technology.
Through adopting technology-based discourse, communication will be more
effective and trials will become more time- and cost-efficient, but the
government must first invest in the infrastructure to enable this to happen.
Jurors will operate best if placed in a respectful work environment. Their
lack of access to electronic evidence is particularly acute when others in the
courtroom have such access. Jurors should be given an electronic tablet with
the items listed above in scenario two. Governments need to fund the new
technology fully and thoughtfully so as to reap the rewards of the long-term
cost benefits of funding the courts of the future.
95
In the dream and acceleration of technology, it is easy for people to get
overlooked. Technology is only as good as the people who operate it; tech-
nological advancement will be useless if practitioners (experts and lawyers)
are unable or unwilling to use it. A change in the legal education model,
including training in technology and multimedia for future and existing
lawyers, is another way to encourage a shift away from the oral paradigm.
96
Technology-based innovation and training must also be accompanied by a
more scientific approach by courts to reforming their processes. Thanks to
technological advances, evidence-based research can be easily and cost-
effectively conducted on a scale that elevates the results to fact. We no
longer need to rely on anecdote and secondary evidence when reforming the
justice system. Monitoring the implementation of trial process innovation is
574
95 See, for example, `Government wasting public money on overpriced IT projects ±
MPs' Guardian, 28 July 2011, at
gover nment -it-s pendi ng-w aste> ; M. Gian nange li, `G overn ment sc anda l as
£5.5million of taxpayers cash spent on IT tablets' Express, 16 June 2013, at
taxpayers-cash-spent-on-IT-tablets>.
96 Some organizations such as the University of Leeds Court 21, the University of
Montreal's Cyberjustice Laboratory, and the United States Centre for Legal and
Court Technology are addressing the need to improve the use of technology in the
courtroom.
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an important way to ensure that the benefits innovation brings to the
courtroom outweighs the drawbacks. Importantly, consultation is required to
ensure that the technological advances that are proposed and implemented
match the needs of practitioners.
97
Another modest way to ensure optimal
use of technology across all technology users would be to create, enforce,
and monitor the implementation of guidelines for the use of technology.
98
CONCLUSION
Accelerating biological and technological innovations are set to transform
social, political, economic, and legal landscapes exponentially. Forensic
science and technology is forcing the hand of old lady justice into action.
99
The existing legal paradigm marked by conservative progression is unviable
in these new conditions.
This article has provided a rudimentary illustration of how the strategic
foresight process might be applied to the legal system. Strategic foresight,
underpinned by a comprehensive theoretical and evidence-based framework,
could be a useful method for law reformers when determining how best to
remodel our justice system. As Lord Thomas forcefully argues, we need to:
look at developing practical and innovative proposals concerning the effective
development of the justice system . . . a focused study of the justice system
carried out by experts from a diverse range of fields without, what might be
described as the dead hand of tradition, holding them back from making bold
recommendations.
100
This is the time for law's visionaries to take the spirit of law and create a
legal world fit for what this century has to offer.
575
97 Giannangeli, op. cit., n. 95.
98 See E. Rowden et al., Gateways to justice: design and operational guidelines for
remote participation in court proceedings (2013), at
justice/justice/publications>.
99 See, for example, Ministry of Justice, `Digital courtroom unveiled as justice enters
the Wi-Fi era', press release (11 April 2010), at
news/digital-courtroom-unveiled-as-justice-enters-the-wi-fi-era>.
100 Lord Thomas, op. cit., n. 1, p. 6.
ß2014 The Author. Journal of Law and Society ß2014 Cardiff University Law School
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