De-Ritualising the Criminal Trial

8/11/2019 De-Ritualising the Criminal Trial

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De-Ritualising the Criminal Jury Trial

Judge David J. Harvey

District Court, Auckland, New Zealand

'Let the jury consider their verdict,' the King said, for about the twentieth time that day.'No, no!' said the Queen. 'Sentence first verdict afterwards.' 1

Judges must be astute to the danger of overloading and thus of diverting the jury from itsessential role of applying its collective wisdom, knowledge and judgment to the evidence ithas heard. 2

Lt. Kaffee: I want the truth!Col. Jessup: You cant handle the truth! 3

Introduction Legal Practice and Legal Process as Information ExchangeIt has been said that the only asset that a lawyer has is time. This comment probablyoriginated to justify time costing, a practice which, over the years, has become highlycontestable. But I would dispute the assertion. A lawyers stock in trade is not time but it isinformation.

The law is no more and no less than an information acquiring, processing and sharingoccupation. The law in itself is information that limits or allows certain activities. So that alawyer may properly advise his client there is an information flow from client to lawyer. Thelawyer may then be required to look up the law in which case there is an information flowfrom the source of law, be it legislation or cases, to the lawyer. The lawyer thencommunicates the information to the client thus the original information flow is reversed.On the basis of the information (advice) received by the client, the client may make a choiceas to the course of action that he or she follows.

Likewise Court proceedings are all about information. Information takes certain forms, be itby way of pleadings which inform the Court what the dispute is about, evidence whichinforms the Court as to the strength of the assertions contained in the pleadings,submissions by which the Court is informed as to the possible approaches that it may adopt

in determining the outcome, and from the Court to the lawyers and the parties when itdelivers a decision. In the course of processing the decision the Judge or Judges will embarkupon their own information acquisition activities, looking up the law, checking theassertions or alternatively having recourse to an internal information exchange involvingJudges Clerks.

In some way shape or form this information exchange process has been a fundamentalreality of the practise of law over the centuries.

1

Lewis Carroll Alices Adventures in Wonderland 2 R v Singh et al [2014] NZCA 306 at [30]3 Aaron Sorkin A Few Good Men


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- The confrontation right a reaction to secret informers and unidentified accusersthat developed from the Continental system, the Inquisition and was associated withStar Chamber in the English Experience

- The importance of cross-examination and testing the oral evidence- The demeanour of the witness as a guide to truth-telling or reliability

Does the twenty-first century offer alternative ways of putting information before a factfinder or enabling a more effective criminal justice process? This paper will examine somealternatives that will preserve the essence of the adversarial trial but which will enhance thecommunication of the information necessary for a proper decision by the fact finder.

Part A Aspects of the Criminal Trial ProcessThe criminal trial process has evolved from a disputation between parties 5 to the adversarialsystem we have today. It was idealised 6 and misused. 7 But the shape of the criminal trial and

its processes are little changed from the nineteenth century, the last major innovation beingthat the accused could give evidence on his own behalf.

So what is the process all about? Gary Goodpaster describes it as follows:

"Facts" are "proven" dialectically through a complex process of persuasion. Thisprocess takes the general form of a dramatic contest aimed at shaping two mutuallyinconsistent interpretations of common data. A decision-maker, paradigmatically a

jury composed of non-legally trained lay persons, assesses the stories presented to itand assigns criminal liability. The parties, almost always acting through attorneys,control and manage the presentation of evidence-the materials from which "facts"

are constructed. The parties and their attorneys are also attitudinally and ethicallycommitted to winning the contest rather than to some other goal, such as discoveryof truth or fairness to the opposing side.

The parties have significantly unequal mutual disclosure obligations. The prosecutionmust present its story first, thus permitting the defense an opportunity to assess thecompeting story and to adjust its own story accordingly. The prosecution does nothave the power to force the defending party to testify and thereby provide theprosecution with material for its story. Additionally, the prosecution must satisfy anextraordinarily high burden of proof-beyond a reasonable doubt-in order to prevail.

Complex evidentiary rules govern the material that may be incorporated into theparties' stories and the inferences the decision-maker should draw from thematerial. Complicated legal instructions are presented to the jury in order to focusand limit its decision al discretion. 8

5 John H. Langbein The Origins of the Adversary Criminal Trial (Oxford University Press, Oxford 2003)6 William Blackstone Commentaries on the Laws of England Book 4 Chapter 27 V.http://www.lonang.com/exlibris/blackstone/bla-427.htm (last accessed 26 June 2014) 7 Kenneth R. Johnston Unusual Suspects: Pitts Reign of Alarm and the Lost Generation of the 1790s. (Oxford

University Press, Oxford, 2013)8 Gary Goodpaster On the Theory of American Adversary Criminal Trial (1987) 78 Jnl of Criminal Law andCriminology 118, 120 121
http://www.lonang.com/exlibris/blackstone/bla-427.htmhttp://www.lonang.com/exlibris/blackstone/bla-427.htmhttp://www.lonang.com/exlibris/blackstone/bla-427.htm


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This somewhat cynical description of the trial process emphasises some underlyingproblems that lie within the adversarial system. If we assume that the adversarial system isto stand, some method of realigning the way in which information is presented to the fact-finder should be devised. In the past, there has been considerable, if not total, reliance uponthe oral nature of the criminal trial. Although the dramatic flair of a Marshall Hall or aClarence Darrow is no longer in vogue, there is little doubt that oral persuasion plays a largepart in the way in which approaches to information adduced during the trial (evidence) maybe used to determine what the facts are.

This is a very fuzzy and inaccurate method of assessing the facts, relying more oninterpretation than upon objective analysis. If we seek a cause for this problem it lies withinthe emphasis upon orality as a means of putting information before the jury (adducingevidence). Predominantly information comes ex ore and is therefore prone to a number ofrandom factors which can impinge upon the way that the information is conveyed which, inturn, has an impact upon how the fact-finder assesses that information in the determination

of a fact.

One of the most common assumptions that underlies the adversarial criminal trial is that, asopposed to scientific matters, in the resolution of matters involving human issuesadversarialism is the best truth-finding system that can be devised. This view is based on theclaim that [t]ruth is best discovered by powerful statements on both sides of a question. 9

It is doubtful that many people think that an adversary contest is the best way to discoverwhat actually happened. Neither scientists, engineers, historians nor scholars from anyother discipline use bi-polar adversary trials to determine facts. 10 Indeed John H. Langbeinsuggests that in the Anglo-American criminal trial the job of each adversary is to win acourtroom struggle which could and does entail tactics that distort or withhold the truthsuch as the concealment of witnesses or withholding information that may assist the otherside. 11

The Criminal Trial as RitualIt may be observed from the quotation from Goodpater above that the adversarial processis accompanied with a considerable amount of ritual, much of which creates an aura ofmysticism, clothing the professional players such as the judge and the lawyers with anesoteric knowledge and understanding of the process that seems arcane. In a curiously

circular manner this focus upon arcana reinforces ritualism.

Nevertheless rituals play an important part in community life. Law remains today one of themost ritualized functions of social life. 12 One need only visit a courtroom or read a judgment to finda very special and often repetitive style.

9 Ibid. at 121.10 Ibid. at 122.11 John H Langbein The Origins of the Adversary Criminal Trial above n. 5 p. 1.12 Claude Gauvard and Robert Jacob, Le rite, la justice et lhistorien in Claude Gauvard and Robert Jacob(Eds.), Les rites de la justice, ( Le Lopard dOr ,Paris, 1999), p. 9


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The belief systems that validate legal rituals are transmitted to each member of societythrough such means as formal education systems, media, authoritative pronouncementsand word of mouth. A cultural belief system allows us to attach meaning to symbolicrepresentations that appear in culturally determined contexts. Thus, the imagery of thecourtroom the dignity of the proceedings, the impartiality of the judge, the adversarialposture of the litigants and the juxtaposition of symbols of authority the coat of arms, theblack robes, police uniforms all communicate culturally determined meaning. 13

Criminal trials are an important representation of social rituals that solidify communityvalues in two ways. The trial defines the community by deciding what is and is notacceptable by deciding an accuseds guilt or inn ocence. Those who are found guilty may beexcluded from the community for a defined period of time or, in the case of the deathpenalty, permanently. Thus, the jury represents and defines the community by determiningcontinued community membership.

In addition to defining the contemporary community, the criminal trial as a social ritualdefines the community through time. The trial is a representation of a democratic riteconnecting the present to the past and the ideals underpinning the justice system within acommunity. The ideals that shape and provide structure for the criminal trial invest it with aspecial form of ceremony, confirming it as a distinctly Anglo-American complex of conceptsand ideals that define the relationship between the State and the individuals who make upthe community.

Aspects of Ritual

Fig 1. High formality and imposing colour of an appellate courtroom

13 Keith B Nunn The Trial as Text: Allegory, Myth and Symbol in the Adversarial Criminal Process A Critique ofthe Role of Public Defender and a Proposal for Reform (1994) 32 Am Crim L Rev 743, 745-6


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The proceedings have an intensely formalistic ritual. The judge, lawyers and court officialshave their set places within their given areas. They move in accordance with a set of formalrules, starting with the judges formal entry. The judge is robed, in some jurisdictionsaccompanied by a bailiff or a tipstaff, and supervises the proceeding through its coursewhich will involve a number of set stages. From the high formality of the commencement ofproceedings, the particip ants respect each others space and use a highly ritualised languagewhich at times resembles an arcane code. They may move from one position to another,often requiring the permission of the judge to do so. The formalistic nature of theproceedings with its emphasis upon an exaggerated politeness and the use of restrainedand non-confrontational or non-argumentative language belies the adversarial contest.

Fig 2. Judicial Robes France Fig 3. Judicial Robes - Germany

Fig 4. Judicial Robes England

The jurors those who have been called upon to decide and determine the facts arepassive participants. They begin their role as a small audience and receive little directinformation about the formalities of the proceedings, the structure of the trial and the limits

If youre going to be logical, if youre going touse reason, and thats the justification formaking a determination, for deciding this isfree speech and this is protected and that isnot, why do you have to wear robes

Ethan Katsh The First Amendment andTechnological Change: The Media Have aMessage (1989) 57 Geo Wash L Rev 1459


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of their roles, other than what they may be told at a jury information meeting beforeselection or by the judge in his or her opening remarks. Generally, they pick up the detailsand particulars of their role as the trial progresses. They learn:

indirectly throu gh the process by means of the imbedded cues of ritual, authority,space, position, place, tone and the directions and modelling of the principal actors.From time to time, the judge, in formal and unfamiliar language, instructs the jurorson how to treat various matters they see and hear. All of these impressions andovert directions teach the jurors that they are witnesses to, and ultimately judges of,a very special event. 14

Although this ritual may seem unusual, it is nevertheless important. The ritual, althoughcarrying with it resonances from history as far back as at least the seventeenth century,originates from and creates some identifiable responses and attitudes. The ritualemphasises the solemnity, propriety, regularity and formal rightness on the event, the

occasion and what is proceeding. In the broader sense

Participation in ritual is also a way of acknowledging, or accepting, membership inthe community that uses the ritual. Depending on its forms, ritual may also invokeand symbolically enact some community value or ideal. Engaging in ritual bothexpresses and creates community; it is a way of participating, sharing, binding andconfirming. 15

Goodpaster suggests 16 that the ritual elements of the adversarial criminal trial are tied upwith its features of theatre and the nature of the contest. He considers that in some

respects the criminal trial has elements of a kind of drama or morality play. Within theframework of trial formalities, etiquette and the rules of evidence, jurors are spectators to ashow, produced and directed by the lawyers who are also the principal actors. The show is aform of competition between the parties, the outcome of which is the determination of acorrect (true?) version of past events. The lawyers are on stage throughout theperformance, playing their parts and gradually revealing the contesting stories of pastevents by bringing forward other actors to tell their story and advance the particular theoryof the correct account of events.

This drama is both rehearsed and extemporaneous, the latter reflecting the dynamic nature

of the information exchange that is taking place. The characters are real and, althoughdirected, are unrehearsed. Although the trial takes place in the present, its focus is upon thepast. The plot of the trial is about a contest between two different stories, the differenceturning upon different alleged factual versions of the same event. The moral underpinningof the story is, from the point of view of the prosecution, the violation of a community normof conduct. From the defence point of view there may be a number of moral underpinningsranging from the suggestion that there was not a violation of a norm involving the accused,or alternatively the behaviour of the accused had some justification within the normative

14

Goodpaster above n.8 p.148.15 Ibid.16 Ibid.


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standards of the community. From the perspective of both sets of participants the greatermoral underpinning of the trial is the fairness of the process and the justice of the outcome.

Whatever specific plot surfaces in a particular trial, all trial plots have as theirunstated subtext the opposition between the government and an individual. In thissubtext, the government has two possible roles: the role of legitimate law enforcerand the role of oppressor of freedoms. The defendant is also cast in the ambivalentroles of a criminal, a deviant, or a potentially oppressed individual. At the conclusionof the trial, both stories, as well as the implicit subtext, are proferred in formalequipoise to the jury for judgment as to who has won the contest, accuser oraccused. The jury is formally free to accept or reject either story or to compose itsown story from the materials of the factual versions presented. The jury does nothave to report which story it chose, but it must agree unanimously on its judgment.In effect, the jury concludes the plot of the play by either condemning the defendantor rejecting the accusation, thereby giving the drama a moral. The jury therefore

expresses a communal moral judgment on the inseparable sum total of the drama ithas witnessed. In reaching its judgment, the jury also reads the subtext of the dramaand implicitly decides which roles the principal players occupied. 17

Criminal Trial Process as AnachronismIt will be observed from the above discussion that the criminal trial ritual requires allparticipants to gather together in the one place. Only then can the ceremony proceed. Thismay reflect community interest, the gathering together of a community to consider andassess wrongdoing. Historically this reflects the norms of the tribe, the village or any other

form of microcosmic community. The word Trial - The action of testing or putting to theproof the fitness, truth, strength, or other quality of anything 18 could apply as much to ascientific experiment as it may to a criminal jury trial. But the one word actually goesbeyond the method of analysis contained in the OED definition, and encapsulates a host ofelements. Essential is that of presence.

What is it that compels the necessity for this important custom of presence. In examiningthis question the words of Claude Levi-Strauss must be borne in mind.

The survival of a custom or a belief can in fact be expla ined in two ways. Either thecustom or belief is a survival without any other significance than that of a historical

residue spared by chance or as a result of extrinsic causes, or else it has survivedbecause through the centuries it has continued to play a role and because this role isthe same as might account for its initial appearance. An institution can be archaicbecause it has lost its reason for existing, or, on the contrary, because this reason for

17 Ibid. p.149.18 Other definitions accept the word trial as undefined but the word is used within a particular context e.g.The action or fact of trying or being tried, in various senses; The examination and determination of a causeby a judicial tribunal; determination of the guilt or innocence of an accused person by a court.

Hence to bring (a person or cause) to trial; to put (a person) on his trial, to stand (one's) trial, etc.; also trialby the country, trial by jury, trial by proviso; The determinatio n of a person's guilt or innocence, or the

righteousness of his cause, by a combat between the accuser and accused (trial by battle, trial by (single)combat, trial by wager of battle, trial by the sword); a combat decisive of the merits of a cause OxfordEnglish Dictionary 2nd Ed. 1989 DVD Version.


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(a) is the personal statement of the deponent or maker; and(b) does not contain a statement that is otherwise inadmissible underthis Act.

There are two major exceptions to the requirements of section 83. One lies in the provisionsof section 103 et seq of the Evidence Act 2006 which provides for the manner in whichevidence may be gi ven in an alternative way. The other may be found in the provisions ofthe Courts Remote Participation Act 2010 (CRPA) which allow for the use of audio-visualsystems to be employed to enable participants in proceedings to be virtually present. Thislatter Act enables significant inroads into the concept of physical participation. Section103 et seq and the provisions of the CRPA are examples of temporal and spatial alterationsto the giving of evidence and the requirement for presence and will be discussed in moredetail below.

In the United States the provisions of the Sixth Amendment are not as specific aboutparticipation as the provisions of the New Zealand Bill of Rights Act and the Evidence Act,but it has formed the basis for the physical presence trial in the United States. The mannerof its interpretation also gives rise to some faulty premises about the historical backgroundto the confrontation right. This erroneous foundation has permeated our thinking aboutthe importance of the confro ntation right to the point where, in New Zealand it isstatutorily enshrined.

The Sixth Amendment provides:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and publictrial, by an impartial jury of the State and district wherein the crime shall have beencommitted, which district shall have been previously ascertained by law, and to beinformed of the nature and cause of the accusation; to be confronted with thewitnesses against him ; to have compulsory process for obtaining witnesses in hisfavor, and to have the assistance of Counsel for his defence.

What is common to both sets of provisions is presence at trial implicitly in the SixthAmendment and expressly in section 83 of the Evidence Act 2006 and the right to examineor confront prosecution witnesses. Thus if a person is going to testify against an accused,that testimony must be offered under oath in the presence of the accused and subject tocross-examination.

The historical justification for the confrontation right and its origin is debateable. Yet theconfrontation right does have some modern rationale.

The Modern Rationale for the Confrontation RightRichard Friedman advances seven purposes for the confrontation right 20:

1. Openness. Confrontation guarantees openness of procedure, which among otherbenefits ensures that the witnesss testimony is not the product of torture or ofmilder forms of coercion or intimidation. This is particularly important given thecontrast to early Continental systems, in which coercion of witnesses examined

20 Richard D. Friedman The Confrontation Clause Re -Rooted and Transformed 2004 -05 Cato Supreme CourtReview 439 442-3


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privately was very common. One would have expected in the twenty-first centurythat the use of torture would have been at least an anachronism and at worst a warcrime practiced by ruthless totalitarian governments and inimical to the values ofWestern democracies. The treatment of terror suspects following 9/11 challengesthose assumptions.

2. Adversarial Procedure . Confrontation provides a chance for the defendant,personally or through counsel, to dispute and explore the weaknesses in thewitnesss testimony. In an earlier day that chance came in the form of a wide-openaltercation in court. Today it comes in the form of cross-examination, although therationale for the involvement of the defence lawyers had little to do withconfrontation quite the contrary.

3. Discouragement of Falsehood . Confrontation discourages falsehood as well asassisting in its detection. The prospect of testifying under oath, subject to cross-

examination, in the presence of the accused makes false accusation much moredifficult than it would be otherwise, or so at least is the well-settled belief. But doescross-examination require the physical presence of the witness or of counsel?

4. Demeanour as Evidence . If, as is usually the case, the confrontation occurs at trial or(in modern times) in a videotaped proceeding, the trier of fact has an opportunity toassess the demeanour of the witness. It should be noted that modern assessmentsof credibility rely less and less on demeanour which has largely been discounted asan indicium of truth telling.

5. Elimination of Intermediaries . Confrontation eliminates the need for intermediaries,and along with it any doubt about what the witnesss testimony is.

6. Symbolic Purposes. Beyond these instrumental purposes, confrontation ofprosecution witnesses serves a strong symbolic purpose that has been re cognizedin the United States. Even if confrontation had no impact on the quality of theprosecutions evidence, it would be important to protect because, there issomething deep in human nature that regards face-to-face confrontation betweenaccused and accuser as essential to a fair trial in a criminal prosecution. 21 It speaksto the community abhorrence of the hidden accusation. Yet in the Twenty-first

century does this require or mandate physical presence? One has to reflect on Levi-Strausss comments on ritual in considering whether this form of symbolism is mereanachronism

7. The Weight of History. The symbolic value of confrontation is enhanced by thehistory of the right. Indeed, the very fact that for many centuries accused personshave had the right to confront the witnesses against them makes it especiallyimportant to continue to honour that right. This, of all the purposes, is the mostdebateable, as this discussion demonstrate.

21 Maryland v Craig (1990) 497 US 836, 846; Coy v Iowa (1988) 487 US 1012, 1019-20; Lee v Illinois (1986) 476US 530, 540.


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It is important to note that there is no suggestion that the confrontation right had anythingto do with the issue of whether or not testimony was reliable. It was a rule thatunderpinned the manner in which testimony was taken. A witness may not be heard for theprosecution unless the accused has an opportunity to be confronted by him or her thewitness must speak in the presence of the accused and be subject to cross-examination. 22

Today the confrontation right is associated with the so-called adversarial process andadversarialism began with the increased role of the defence lawyers in the criminal trial. Yetthere is no suggestion of the development of a confrontation right that went hand in handwith adversarialism. Indeed, the reasons for the development of the adversarial trial seemmore tied up with inequality of arms and concerns about the reliability of evidence andsubsequent convictions than the right of an accused to confront his accuser.

Notwithstanding the confrontation right, the trial ritual with its emphasis on orality andreliance on the testimony of individual witnesses has its problems. Although the medieval

mentality may have preferred oral testimony it was then, as it is now, subject to a numberof shortcomings which must be recognised.

It may well be that cross examination is the greatest engine for determining truth but it, too,is flawed and is dependent upon the forensic skills of the advocate for its effectiveness.Even then, as a truth seeking device, it falls short. There are ways in which some of theproblems of oral evidence may be mitigated. This involves the use of technology and someof the solutions that I propose challenge many of the established rituals and practices ofcriminal trial procedure.

In light of new technologies that enhance information exchange, the justification for thephysical presence trial with oral, presence based evidence-giving processes are no longervalid and indeed lack anything other than a deep atavistic basis for their continuation. Yet,some of the other important aspects of criminal trial procedure may remain includingadversarialism. But the focus of adversarialism should be upon information testing .

Technology provides some of the solutions to effectively placing information before thefact-finder. However, it has been observed that technology leads to a disenchantment withand trivialisation of ritual. As we have seen ritual, particularly through its symbolic aspect,contributes to the social order. The challenge for justice in the Digital Paradigm is to re-

invent rituals that are based on those of the past or adapt rituals to a new technology sothat the concurrence and authority that they cast on the thing that they adorn appearconsubstantial with the exercise of justice. 23

The next section will address some of those challenges in considering the greater use oftechnology in the criminal trial process.

22 Friedman above n. 20 at 445.23 Karim Benyakhlef and Fabian Gelinas On -line Dispute Resolution (2005) 10 (2) Lex Electronica


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Part B Using Technology to Improve ProcessI now turn to the use of technology in the trial process. But before embarking upon specificexamples, there are some general matters that need to be considered, and perhaps one ofthe most important of these relates to the use and expectations of information by youngergenerations. Should the information values and expectations of a sixty-eight year old whogrew up in the days before television, dictate the information uses and expectations of thedigital native?

Drivers for ChangeIn the main, lawyers are slow adopters of new technologies, and the criminal defencelawyer is perhaps one of the most conservative, especially if proposals are put in place thatmake evidence clear and, as is often the case with technological systems, almost irrefutable.The technology is neutral. It cannot be cross-examined to the point where it acknowledgesthat it cannot be sure. As the US Supreme Court said in Scott v Harris 24 the technologyspeaks for itself.

Resistance to change does the criminal trial little good. If anything it compromises itseffectiveness and its credibility in the minds of the public. There are certain imperatives thatare driven by technology. Those who are voting for the first time in the 2014 election in NewZealand were born in 1996. They have grown up in a world of the Internet, computers,smartphones and digital devices. They are children of the digital paradigm. They are MarcPrenskys digital natives. 25 Prensky was writing about students and their use of technologybut the University students of whom he wrote in 2001 are now adults and available for juryservice.

They have spent their entire lives surrounded by and using computers,videogames, digital music players, video cams, cell phones, and all the other toys andtools of the digital age. Todays average college grads have spent less than 5,000hours of their lives reading, but over 10,000 hours playing video games (not tomention 20,000 hours watching TV). Computer games, email, the Internet, cellphones and instant messaging are integral parts of their lives

It is now clear that as a result of this ubiquitous environment and the sheer volumeof their interaction with it, todays students think and process informationfundamentally differently from their predecessors. These differences go far further

and deeper than most educators suspect or realize.26

24 (2007) 550 US 372.25 Marc Prensky Digital Natives, Digital Immigrants (2001) 9 On the Horizon1http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf; www.marcprensky.com//prensky%20 -%20digital%20natives,%20digital%20immigrants%20-%20part1.pdf (last accessed 23 February 2012). For abri ef introduction the the development of Presnskys theory see Wikipedia DigitalNative http://en.wikipedia.org/wiki/Digital_native (last accessed 6 August 2014); see also Sylvia Hsieh

Digital Natives Change Dynamic of Jury Trials Mass Law Wkly 7 November2010 http://www.legalnews.com/detroit/803882 (last accessed 6 August 2014).26 Ibid. Prensky.
http://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdfhttp://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdfhttp://www.marcprensky.com/.../prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdfhttp://www.marcprensky.com/.../prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdfhttp://www.marcprensky.com/.../prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdfhttp://www.marcprensky.com/.../prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdfhttp://en.wikipedia.org/wiki/Digital_nativehttp://www.legalnews.com/detroit/803882http://www.legalnews.com/detroit/803882http://en.wikipedia.org/wiki/Digital_nativehttp://www.marcprensky.com/.../prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdfhttp://www.marcprensky.com/.../prensky%20-%20digital%20natives,%20digital%20immigrants%20-%20part1.pdfhttp://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdfhttp://www.emeraldinsight.com/journals.htm?issn=1074-&121&volume=9&issue=5&articleid=1532742&show=pdf


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Prenskys digital natives are native speakers of the digital language of computers, videogames and the Internet. Those who were not born into the digital world but have, at somelater point in life, become fascinated by and adopted many or most aspects of the newtechnology are digital immigrants. Prensky suggests that the difference is importantbecause, like it or not, digital immigrants speak with a d ifferent accent from digitalnatives.

As Digital Immigrants learn like all immigrants, some better than others toadapt to their environment, they always retain, to some degree, their accent, thatis, their foot in the past. The digital immigrant accent can be seen in such thingsas turning to the Internet for information second rather than first, or in reading themanual for a program rather than assuming that the program itself will teach us touse it. Todays older folk were socialized d ifferently from their kids, and are now inthe process of learning a new language. And a language learned later in life,scientists tell us, goes into a different part of the brain. 27

There is a third category which was not referred to by Prensky, but if I can use his languagethey may be classed as digital aliens those who wish to have nothing to do with the digitalparadigm, who do not wish to engage with the new technology or will not do so, and whoresist the changes that new technologies demand of them. This grouping is normal in theintroduction of a new technology. It is part of the normal co-existence of technologies untila new technology has been universally received, and the digital natives become anoverwhelming majority. 28

Lord Chief Justice Judge recognised the digital native issue and put this into the context ofthe jury trial when he wrote:

Let me now consider my grandchildren. Not perhaps the youngest two, but theteenagers. They are technologically proficient. Much of their school work is done byabsorbing information from machines. They consult and refer to the Internet. Whenthey do so they are not listening. They do not, as we did, sit in class for 40 minuteslistening to the masters and mistresses providing us with information. They areprovided with information in written form, which they assimilate into their owntechnology.

Now, what this form of education lacks is training in the ability to sit still and listen,and I emphasise, listen and think, I repeat, listen and think simultaneously, for

prolonged periods. Yet that is an essential requirement for every juror. 29

27 Ibid.28 As Steve Jobs put it when the A pple computer was first came on the market When Apple first started out, peoplecouldnt type. We realized: Death would eventually take care of this. Wall St Journal All Things Digital Conference April2003, San Francisco. The report of the comments is at The Mac Observer Website Steve Jobs: No Tablet, No PDA, No CellPhone, Lots Of iPods 4 th June 2003http://www.macobserver.com/tmo/article/Steve_Jobs_No_Tablet_No_PDA_No_Cell_Phone_Lots_Of_iPods/( last accessed

5 April 2012). 29 Rt Hon The Lord Judge Jury Trials (Judicial Studies Board Lecture, Belfast 16 November2010) http://www.judiciary.gov.uk/media/speeches/2010/speech-by-lcj-jsb-lecture-jury-trials (last accessed 4 April 2012).
http://www.macobserver.com/tmo/article/Steve_Jobs_No_Tablet_No_PDA_No_Cell_Phone_Lots_Of_iPods/http://www.judiciary.gov.uk/media/speeches/2010/speech-by-lcj-jsb-lecture-jury-trialshttp://www.judiciary.gov.uk/media/speeches/2010/speech-by-lcj-jsb-lecture-jury-trialshttp://www.macobserver.com/tmo/article/Steve_Jobs_No_Tablet_No_PDA_No_Cell_Phone_Lots_Of_iPods/


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What is perhaps so dramatic about this passage is that His Lordship describes a trial systemthat depends upon orality as its focus, and perhaps what he fails to recognise is that theDigital Natives find such a means of absorbing information incompatible with the way inwhich their learning systems are becoming adapted as a result precisely of the technologicalproficiency to which His Lordship refers. The means of information gathering is radicallydifferent from that acquired, say, from a book and as Sven Birkerts observes.

Information and contents do not simply move from one private space to another,but they travel along a network. Engagement is intrinsically public, taking placewithin a circuit of larger connectedness. The vast resources of the network arealways there, potential, even if they do not impinge on the immediatecommunication. Electronic communication can be passive, as with televisionwatching, or interactive, as with computers. Contents, unless they are printed out (atwhich point they become part of the static order of print) are felt to be evanescent.They can be changed or deleted with the stroke of a key. With visual media

(television, projected graphs, highlighted bullets) impression and image takeprecedence over logic and concept and detail and linear sequentiality are sacrificed.The pace is rapid, driven by jump-cut increments, and the basic movement islaterally associative rather than vertically cumulative. The presentation structuresthe reception and, in time, the expectation about how information is organised.

Further, the visual and non-visual technology in every way encourages in the user aheightened and ever-changing awareness of the present. It works against historicalperception, which must depend on the inimical notions of logic and sequentialsuccession. If the print medium exalts the word, fixing it into permanence, theelectronic counterpart reduces it to a signal, a means to an end. 30

This is the information ecosystem within which the Digital Natives who are beginning tomake up toda ys juries dwell . They have been brought up on an information rich,technologically based environment. Their expectation is that the information processingthat leads to the decision of a jury will use the information gathering, presentation andanalytical tools to which they have become accustomed. To expect them to do otherwise isto allow archaic systems of information exchange prevail for no other reason than ritualisticprocesses and this the way that it always has been done. It is time to consider a dramatic,possibly revolutionary, change.

The Technology TaxonomyProfessor Fred Lederer, Director of the Center for Legal and Court Technology at theCollege of William and Mary Law School made the following comment:

Most evidence is and will be digital in nature, largely eliminating any need to showthe "original" physical exhibit in evidence. Indeed, as most people are visually anddata oriented, jurors and even judges will expect to see as much information aspossible on screens in front of them. The trial lawyer will continue to be essential,but the underlying evidence will become even more important-and it will need to bevisually presented. The advent of the smartphone with camera foreshadowed what

30 Birkerts The Gutenberg Elegies: The Fate of Reading in an Electronic Age (Faber, Winchester MA 1994) p. 122-3.


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be. 32 Video records, with their ability to present voice intonations, facial expressions andbody language may abrogate the need for such deference, unless of course, deferenceserves interests such as finality to a greater degree than has previously beenacknowledged. 33

A comprehensive multi-media record necessarily forces one to ask whether appeals mightbecome in effect de novo appeals. It is suggested that an appellate court would feel far freerin its review if it had available nearly everything that had happened below. Preservationalinformation technology means that an appeal court may be more properly informed of thebasis of an appeal than may be apparent from a written transcript.

One of the advantages of the digital environment is that storage of the record does notrequire as much space as a paper-based record. Preservational and archival technologiesmean that bulky and difficult to store paper files can be reduced to a digital format andstored in less space.

Analytical Information TechnologiesIn general the t erm analytical information technologies refers to software systems whichmay interpret or order data. A relational database is one example. The various products thatare used in the E-Discovery process provide others.

The ability of digital systems to order data may be simplistically demonstrated in theordering of information into chronological sequence based on date fields assigned to data.This could be useful in dealing, say, with cases involving the purchase of precursorsubstances for the manufacture of methamphetamine. A large number of transactionstaking place over a significant period of time involving a large number of dates, geographicallocations and chemist shops, may be sorted into chronological order demonstrating apurchase pattern based primarily on dates which is often linked to geographical locations.Thus analytical tools assist in the ordering of evidence material and to a certain degree inthe analysis thereof.

One of the qualities or affordances of digital information is the search ability of data. It wasthis quality, and its use as a form of analytical tools that underpinned the provision of allwritten material in digital form to the jury in the cases over which Judge Wilson QC and Ipresided. It seemed to us that this was the next logical step in assisting the jury in its role toconsider and analyse the evidential material that had been put before them without havingto resort to slippery memory or a cumbersome and unwieldy collection of documents in

the form of transcripts or documentary exhibits. To compel such an archaic form of analysiswhen other tools were available seemed to both of us to be counter-productive andpossibly more prone to error.

Spatial and Temporal TechnologiesWithin the categories of evidential and communicative technologies there are twoadditional categories spatial technologies and temporal technologies.

32 Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 14133 One study in Kentucky has suggested that when using video rec ords the Court of Appeals is somewhat lessinclined to reverse the original trial court factual determinations: JA Maher Do Video Transcripts Affect the

Scope of Appellate Review? An Evaluation in the Kentucky Court of Appeals (National Center for Stat e Courts,1990). See http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/appellate&CISOPTR=1 (lastaccessed 3 June 2011).


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Spatial technologies allow contemporaneous communication of information over a distance.The communicator may be one physical location - the recipient may be in another.Technologies that provide us with examples of this class are not new and may range fromthe signal fire, semaphore, telegraph and wireless to radio, television and Skype. In terms ofthe application of spatial technologies in the Court process, the provisions of the Courts(Remote Participation) Act 2010 is a perfect example of the use of spatial technologies. Theunderlying themes of the legislation is to enable participation in Court proceedings from adistance by the use of communication technologies. There are two concerning featuresabout this legislation. The first is its underutilisation by Courts and participants. Most of thetime, the Act is employed in remand hearings in criminal cases. The other is its restrictionson use in the criminal trial process.

Temporal technologies are those that allow information to be gathered, collated and storedand used at a later time. Again, there are examples of temporal technologies that predatedigital ICT. The written question and answer record of an interview between a Police officer

and a suspect, the tape recording of such an interview, the video recording of such aninterview all provide examples. Digital technologies now present us with a wider range oftemporal evidence gathering and presentation techniques. One example is the use ofrecordings from static CCTV cameras in buildings or on city streets. Another may be found inrecordings derived from body-worn cameras by police officers in London which have beenthe subject of a recent trial. 34 In the United States the US Supreme Court accepted thepresentation of video evidence of a high-speed pursuit. Such procedure is quite uncommonin the Supreme Court and was viewed as part of an interesting relationship between theSupreme Court and technology. The video had a strong effect on the court and is viewed asa major factor in how the court made its decision. 35

The practice of using recorded interviews of the accused or of recordings of interceptedconversations either by telephone or a remote listening device are examples of temporaltechnologies. A mode of evidence application under s. 103 Evidence Act 2006 seeking leavefor a recorded interview of the complainant to be played as evidence in chief, and forcontemporaneous cross-examination to take place with the witness located in anotherroom in the Courthouse 36 provides an example both of the use of temporal AND spatialclasses of technology.

This is not the place to debate the legal requirements surrounding the use of spatial ortemporal technologies. Certainly there has been a certain judicial caution in allowing

34 Josh Halliday Met police trial of body -worn cameras backed by David Davis The Guardian 8 May 2014http://www.theguardian.com/uk-news/2014/may/08/police-london-issued-body-worn-cameras (last accessed22 June 2014).35 Scott v Harris above n.23. The video may be found on YouTube athttps://www.youtube.com/watch?v=qrVKSgRZ2GY (last accessed 22 June 2014. For a critique of Scott v Harris not as to outcome but as to reasoning see Dan M. Kahan, David A. Hoffman and Do nald Braman WhoseEyes Are You Going to Believe: Scott v Harris and the perils of cognitive illiberalism (2009) Harv. LR 838. 36 Why it is necessary for the witness to be transported to the Courthouse for cross-examination when spatial

technology would enable him/her to be cross-examined from any other location may be premised only on thebasis that the Court may need to exercise some supervisory function over the witness, but for no otherpurpose.
http://www.theguardian.com/uk-news/2014/may/08/police-london-issued-body-worn-camerashttp://www.theguardian.com/uk-news/2014/may/08/police-london-issued-body-worn-camerashttps://www.youtube.com/watch?v=qrVKSgRZ2GYhttps://www.youtube.com/watch?v=qrVKSgRZ2GYhttps://www.youtube.com/watch?v=qrVKSgRZ2GYhttp://www.theguardian.com/uk-news/2014/may/08/police-london-issued-body-worn-cameras


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temporal technologies and there remain certain issues about the use of spatial technologieswhere a participant is located outside the jurisdiction. 37

Maintaining the Confrontation Right Many of the obstructions to the proper evaluation of information needed by a fact-finder to

arrive at a conclusion arise from practices rooted in the ritualised oral procedures ofevidence giving that have surrounded the criminal jury trial. These procedures wereperfectly satisfactory in an era where communication imperatives and an absence of therange of communication technologies present today mandated the physical presenceparticipation model of the criminal jury trial. One of the justifications for the physicalpresence participation model was the reliance upon the confrontation ri ght. Its role in thelawyer speaks model of the criminal trial is redundant. In reality the presenceparticipation model was more apposite to the accused speaks trial described byProfessor John Langbein 38 that preceded the involvement of the lawyers in the trial process.

But whether or not the confrontation right has any validity, the fact of the matter is that it isconstitutionally and statutorily mandated. It is my argument that the essential elements ofthe confrontation right may be maintained through the use of information technologieswhilst dispensing with the inconveniences and costs of the physical presence participationmodel.

The justification for witnesses to be physically present in the Court for examination is nolonger relevant when virtual presence by means of a high definition screen can enable abetter and clearer view of a witness than is possible from a jury box across a courtroom tothe witness stand. The questionable value of demeanour suggests that this justification forpresence is at best arguable. Indeed, some minor amendments to the CRPA would make it

possible for witnesses to give evidence from remote locations and for the accused to bevirtually present without compromisin g rights under the New Zealand Bill of Rights Act,

If it is accepted that the requirement for physical presence is no longer necessary, it isnevertheless possible for elements of the confrontation right to remain. As earlier indicated,the provisions of the Courts Remote Participation Act 2010 create a significant exception tothe provisions of section 83 of the Evidence Act 2006.

What must be remembered is that the provisions of the CRPA involves spatialconsiderations. It envisages the contemporaneous involvement of participants. Thiscontrasts with the provisions of section 103 which, prior to the enactment of the Remote

Participation Act had spatial implications, now applies primarily to pre-recorded evidence a temporal consideration with associated provision for cross-examination in what isreferred to a mode of evidence application.

37 However, for a detailed consideration of the use of spatial technologies for off-shore participants in thecontext, not of the Courts (Remote Participation Act 2010 but by way of an application pursuant to s. 103 ofthe Evidence Act 2006, see the decision of Stevens J in Deutsche Finance NZ Ltd v CIR (2007) 18 PRNZ 710where he provides for a detailed list of procedural requirements accompanying the participation of the

witnesses involved. It is suggested that these criteria could and should be applied in cases involving remoteoff-shore participation under the Courts (Remote Participation) Act.38 Langbein above n. 5 especially p. 48 et seq.


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The purpose of the CRPA is to enable a greater use of audio-visual links (AVL) in NewZealand courts. 39 The Act sets out the criteria for consideration of the use of AVL in courtproceedings. There is a presumption in favour of AVL in criminal procedural matters whereno evidence is being presented unless the judicial officer is satisfied on his or her ownmotion or on the objection of any party that the criteria would not be satisfied. It allows forthe use of AVL in criminal substantive matters where evidence is being presented on theapplication of any party or on the judicial officers own motion where the judicial officerconsiders that the criteria would be satisfied, but AVL must not be used for the appearanceof a defendant at trial that determines his or her guilt or innocence unless the defendantconsents to that use. 40 However, it does not mandate the physical presence of a witness orindeed counsel.

Section 5 of the CRPA sets out the general criteria allowing the use of AVL:

(a) the nature of the proceeding: (b) the availability and quality of the technology that is to be used: (c) the potential impact of the use of the technology on the effective

maintenance of the rights of other parties to the proceeding including (i) the ability to assess the credibility of witnesses and the reliability of

evidence presented to the court; and (ii) the level of contact with other participants:

(d) any other relevant matters.

Additional criteria are set out in s 6 relating to the use of AVL in criminal proceedings. The languageof the section is directive. The judicial officer or registrar must consider whether or not to allow

the use of AVL, or the appearance of any participant in a criminal proceeding, the potential impactof the use of the technology on the effective maintenance of the right of the defendant to a fairtrial and on his or her rights associated with the hearing and in particular: 41

(a) the ability of the defendant (i) to comprehend the proceedings; and (ii) to participate effectively in the conduct of his or her defence; and (iii) to consult and instruct counsel privately; and (iv) to access relevant evidence; and (v) to examine the witnesses for the prosecution; and

(b) the level of contact the defendant has with other participants; and (c) any adverse impression that may arise through the defendant or any other

participant appearing by means of AVL, and whether that adverseimpression may be mitigated.

If a defendant consents to the use of AVL at trial the judge may direct the jury that it mustnot draw any adverse inferences against any party to the proceeding because it is being

39 AVL is defined as in relation to a participant's appearance at any proceeding, means facilities that enableboth audio and visual communication between participants, when some or all of them are not physically

present at the place of hearing for all or part of the proceeding (section 3).40 Courts Remote Participation Act 2010 s. 9(2).41 CRPA, s 6.


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used. 42 There is no presumption that AVL will be used in criminal substantive proceedings,although there is such a presumption in criminal procedural hearings. Section 9 prohibits theuse of AVL for the appearance of a defendant in a trial that determines his or her guilt orinnocence unless the defendant consents to its use.

The AVL TrialThe Act provides a significant recognition of the potential for communications use. Althoughit dispenses with the need for physical presence it maintains the essential aspects of theconfrontation right. The accused is able to hear the evidence that is given. There is theability for cross examination. The availability of high definition screens means that there willbe little if any image distortion for the accused or other participants located elsewhere.

In addition the provision of technology should pose little difficulty. There are a number ofvideo -conference technologies available. At the moment New Zealand Courts use adedicated Voice\Video over IP system that is effective but expensive and is not widelyavailable.

In late May 2014 I participated in a test of video-conferencing software and electronicbundle software in a mock international trial. 43 All the participants were scattered Auckland, New Zealand, Washington DC, London, Croydon and Edinburgh. Thecommunications software used was Microsoft Lync and the Electronic Bundle was providedby Caselines, a product of Netmaster Solutions, an English company. The trial rapidlyestablished the feasibility of the software tools, both of which are reasonably priced and arebrowser based which meant tha t no additional software needed to be installed on a userscomputer. In addition, the software meant that place did not matter a classic example ofthe application of spatial technologies. From a technological and practical point of view, a

remote hearing is possible, practical and feasible.All Participants Lawyers, Judges, Witnesses, Accused Jury?The CRPA provides the following definition of a participant.

a person who is, in that proceeding, any of the following:(a) a party:(b) the defendant:(c) counsel:(d) a witness:(e) a member of the jury:

(f) a judicial officer who is presiding over the proceeding:(g) a Registrar who is presiding over the proceeding:(h) any other person directly involved in the proceeding whom the judicial officeror Registrar considers appropriate

42 CRPA s 12.43 For reports seehttp://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614 (last accessed 27 June 2014) http://www.independent.co.uk/news/uk/home-news/the-etrials-of-

the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.html (last accessed 27June 2014) and for an interview with Judge Simon Brown QC on the effectiveness of the trial seehttps://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.be (last accessed 27 June 2014)
http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614http://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.htmlhttp://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.htmlhttp://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.htmlhttp://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.htmlhttps://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.behttps://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.behttps://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.behttp://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.htmlhttp://www.independent.co.uk/news/uk/home-news/the-etrials-of-the-future-judges-take-part-in-pilot-that-could-revolutionise-court-system-9474101.htmlhttp://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=GAZ020614


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Given that definition, all the participants to a hearing could attend by way of AVL.Admittedly, it would be a pioneering judicial officer who authorised a proceeding to beconducted in such a way, but if all the other criteria for AVL utilisation could be fulfilledthere is no statutory impediment for a hearing to be conducted in this way. Certainly, whenone looks at the possible scope of CRPA, one can see that the Act provides a significantexception to the provisions of section 83 of the Evidence Act, yet maintains a form ofvirtual confrontation. The physical presence trial could become a thing of the past withthe bold use of the CRPA.

Expanding the Use of the Remote Participation ActThe opposition in Parliament to the enactment of the CRPA had two major themes. The first,as may be expected, related to the confrontation right and the physical presence ruleimplied by s.25(e) of the New Zealand Bill of Rights Act 1990. The other related to some ofthe technological shortcomings surrounding the use of AVL. While very few, if any, opposedto aspects of the Bill had any problem with AVL being used for procedural hearings, there

was considerable objection to its use for a substantive hearing. One suggestion was thatwithout physical presence an accused could not keep tabs on the cozy conversationbetween counsel, the inattentive or snoozing juror or, worse still, the sleeping judge or thatthe camera may not be playing on the key participants at a vital stage. Such a suggestionignores split screen and multi camera technology, along with voice activated cameras andswivelling cameras. The days of a single static camera are long gone. At no stage in thedebate did there seem to be a consideration of the advantages or shortcomings of the useof technology to fulfil the purposes of the Bill of Rights Act or the Evidence Act. Rather, thevisceral reaction was based upon the outrageous suggestion that a trial could take placeother than in the physical presence of the accused. 44

As matters stand the CRPA is underutilised. It is used primarily for bail or remand hearings incourtrooms that are specially equipped with expensive AVL equipment. This may well resultin a significant cost saving for what are essentially procedural roll -over remands. Thedisturbing thing is that although greater use could be made of AVL, until the necessaryequipment is made available, this form of technology use, which could be significantlybeneficial for witnesses together with savings in fees for counsel from a distance, islanguishing. There are alternative means available for providing AVL that do not involve theexpensive, dedicated systems currently in use. But as I have said, lawyers are slow adoptersof technology, and it is doubtful that they will lead the charge towards the greaterutilisation of AVL.

Enhancing OralityI have emphasised that we continue to use oral evidence as the principal means of puttinginformation before the fact finder. There will always be room for orality in the criminal trialprocess but there are shortcomings in this form of information recall and transmission someof which can be mitigated by the use of communications technologies.

44 For the debates see Hansard Vol 664, p. 12266 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-

reading (last accessed 27 June 2014); Hansard 30 June 2010 Vol 664 p. 12349 http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committee (last accessed 27 June 2014);
http://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-readinghttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-readinghttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-readinghttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-readinghttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-readinghttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100630_00001105/courts-remote-participation-bill-%E2%80%94-in-committeehttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-readinghttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-readinghttp://www.parliament.nz/en-nz/pb/debates/debates/49HansD_20100629_00001172/courts-remote-participation-bill-%E2%80%94-second-reading


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whereas Expert B is shy, appears to lack confidence and finds it difficult to make eyecontact. In light of this, it seems incongruous to suggest that demeanour is onlysomething relevant in cases where credibility is recognised as being in issue. Thuscredibility becomes a performance issue.

If demeanour is so questionable a method of assessing credibility, is it necessary forwitness presence in the Court.

Why has demeanour been considered important? Professor Ian Coyle puts it thisway:

In practice, this means attending to verbal and non -verbal indicia oftruthfulness, in addition to considering collateral information that may refuteor confirm a witnesse s recollection. In many cases, where competingversions of events are given, the assessment of such indicia are of greatimport: sometimes it may be the only basis on which a decision can be

arrived at. Legal training and experience confers no special benefit indetecting deception in forensic contexts. There is no compelling evidencewhich proves that lawyers generally, and judges in particular, operate atanything better than chance level when detecting truthfulness, althoughthere is a danger that they may think otherwise. And there is an abundanceof evidence that jurors attend to unreliable indicia of deception when makingtheir decisions. 48

The problem becomes more acute when stereotypical behaviour comes in to themix.

An impressive witness accor ding to Anglo-Australian culture will look his orher questioner in the eye and answer questions confidently and clearly. Inother cultures, however, direct eye contact maybe considered rude andchallenging... such responses may be misunderstood as demonstratingevasiveness or shiftiness on the part of the witness. 49

The problem is that gaze aversion is the most unreliable indicator of deception in allcountries that have been studied. Professor Coyle discusses other forms ofstereotypical behaviour that are unreliable indicators of lying or deception

Apart from gaze aversion, other global, pan -cultural, stereotypes of lyingincluded the entrenched beliefs that liars shift posture (65.2%), touch andscratch themselves (64.8%) and tell longer stories than usual (62.2%). Noneof these stereotypes are accurate (The Global Deception Research Team,2006). More generally, a very significant proportion of laypersons andprofessionals beliefs about non -verbal and verbal cues to deception havebeen repeatedly demonstrated to be incorrect (De Paulo, Lindsay, Malone,

48 Professor Ian R Coyle How Do Decision Makers Decide When Witnesses Are Telling The Truth And What Can

Be Done To Improve Their Accuracy In Making Assessments Of Witness Credibility? Report to the CriminalLawyers Association of Australia and New Zealand 3 April 2013 p. 8. 49 Equal Treatment Benchbook of the Queensland Supreme Court (2006) p. 75.


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Muhlenbruck, Charlton & Cooper, 2003; Mann, Vrij & Bull 2004; Mann & Vrij,2006). Apart from the ubiquity of gaze aversion, frequent blinking, fidgetingwith objects or self, self-grooming, shifting posture, rate of speaking andbrow lowering, none of these indicia are reliable indicators of lying. 50

Coyle suggests that proper directions or counter-intuitive expert evidence should begiven to jurors to correct well-entrenched misconceptions of which behaviouralindicia are indicative of deception. But the problem remains. Demeanour varies fromperson to person. Generalisations about behaviour are unhelpful in determining thewitness of truth.

3. Ability to recount the articulate vs the inarticulateThis may be seen as an aspect of demeanour but in terms of communication andinformation flow it is probably in a category of its own. Demeanour goes to the

assessment of the person communicating the information. The ability to recountgoes to the act of communication and has an impact upon the assessment and thequality of the information that is being given. An eloquent and verbally skilledwitness one who is comfortable with the subtleties and nuance of language isgoing to be able to tell the story more convincingly that the person with a limitedvocabulary, unskilled in the nuance of language. Such a person is easy game for thearticulate and skilled lawyer in cross-examination yet may still be a witness of truth,unable to properly tell his story. There are other factors which I shall address belowthat may cause further problems and hamper this individuals ability to tell his story.

4. Vocal abilities and verbal skills Associated with problems of articulation may be those that a person may have inbeing comprehended. Such a person may have the ability to converse in, say,English, but a problem for the auditor may arise when the speakers accent impairsthe auditors comprehension of what is being said. Subconsciously the auditor mayattribute to this witnesss story less weight, simply because she had difficulty fullyunderstanding what was being said. In such a case any empathy that might naturallyoccur between speaker and auditor is reduced, diminished or lost completely.Further problems may arise in terms of tone of voice, accent, speech impedimentsand the like - associated aspects of articulation that deal with the ability to speak or

enunciate.

5. The problem of translation .Difficulties in comprehension are increased when a translator is present. Thisnecessarily means that the story is delivered in a stuttering fashion with an absenceof nuance, and the true meaning that the speaker seeks to convey may be lost as aresult of lack of nuance. The problem is further complicated not only for the witness

50 Professor Ian R Coyle Report to the Criminal Lawyers Association above n.106 p. 11. On the subject ofdemeanour generally see Professor Coyles extensive bibliography. See also Lindsley Smith Juror Assessment

of Veracity, Deception, and Credibility, http://www.uark.edu/depts/comminfo/CLR/smith1.html (lastaccessed 20 June 2014.
http://www.uark.edu/depts/comminfo/CLR/smith1.htmlhttp://www.uark.edu/depts/comminfo/CLR/smith1.htmlhttp://www.uark.edu/depts/comminfo/CLR/smith1.htmlhttp://www.uark.edu/depts/comminfo/CLR/smith1.html


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who does not have English as a first language but for people who do and areparticipating in a trial where the accused does not. As a result of the New ZealandSupreme Court decision in Abdula v R 51 every word must be translated line by linefor the benefit of the accused. This heightens the stuttering way in which the storyis being told, interferes with the sequentiality of the account and impairs or reducesconcentration and comprehension. In its quest for ensuring that the accusedcomprehends what is being said, the Supreme Court has thrown the importance ofcommunicating information between witness and fact-finder to the wind and hasdone potential damage to the proper assessment of the information that is beingconveyed, not only by the witness who requires a translator, but by all thewitnesses who do not, but whose evidence is effectively being laboriouslytranslated line by line for the accused.

6. Intellectual ability and suggestibility .In some respects these aspects of communication are related to those of

articulation and vocal and verbal skills. There can be no doubt that the person whosuffers an intellectual disability that affects recall or articulation is going to havedifficulties telling a story let along a convincing one. And one has to be careful toensure that empathy with a witness does not overflow into sympathy which cloudsobjectivity.

7. The Court Environment Finally there is the intimidating nature of the Court environment a recognisedproblem that can result in nervousness and inhibition in all but the mostexperienced witnesses (who are usually Police officers). Once again the Court

environment, the unusual garb worn by the participants, the ritualisedatmosphere are all impediments to proper and coherent story telling. Mostwitnesses manage, but the whole focus for the witness should be on the story thatis being told rather than being distracted by nervousness and inhibition. Theproblem is that rather than becoming a forum for ascertaining fact, the Court itselfinhibits the communication of information upon which the fact finding depends.

Some of these problems are recognised by allowing evidence to be given in an alternativeway pursuant to s. 103 of the Evidence Act 2006.

Some Solutions using Spatial and Temporal TechnologiesSome of the problems that I have enumerated can be addressed or mitigated using spatialor temporal technology types.

1. Maintaining the Information Flow the issue of translation. Abdula v R deals with affording the accused information about what is being said inCourt. There is no reason why the fact- finder should be distracted by the line -by-line approach suggested by the Supreme Court when technology can solve theproblem and afford the accused his right to and participation in a fair trial.Simultaneous translation employing a remote translator and a set of headphones for

51 SC 80/2010 [2010] NZCA 332


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the accused a facility which was used 68 years ago at the Nuremburg trials 52 willresolve this issue without interrupting or compromising narrative flow.

As an adjunct to the discussion of translation where possible and in my view itshould be a rule a witness statement from a person who speaks other than Englishas a first language should be taken and the interview conducted in his or her firstlanguage. An interpretation transcript can later be provided. The possibility ofinaccuracy arising from a translated police interview even when recorded on video

can lead to problems where questions or answers are mistranslated and theinterview pursues a different direction as a result of inaccurate translation. This hashappened in more than one trial over which I have presided.

2. Articulation of Evidence in a Threatening or Unfamiliar EnvironmentThis omnibus solution addresses items 3,4,6 and 7 of the oral evidence problemsmentioned above. It is recognised that there will be no immediate solution to

communication problems involving vocal or articulation skills or intellectual ability.But there is a case for reducing any aspects of procedure that may enhance theseproblems. The most obvious aspect of the trial that might aggravate these problemsand create impediments to the communication of information is the Courtenvironment itself.

A solution may be found in the employment of both temporal and spatialtechnologies. In New Zealand the provisions of section 103 et seq of the EvidenceAct 2006 provide a possible solution. Section 103 allows for directions to be given asto the way in which evidence is to be given. 53 A judge may direct that evidence be

given in the normal way that is in accordance with the provisions of section 83 ofthe Act or in an alternative way as provided in section 105 of the Act.

The options provided are as follows:

(a) the witness gives evidence (i) while in the courtroom but unable to see the defendant or someother specified person; or(ii) from an appropriate place outside the courtroom, either in New

Zealand or elsewhere; or(iii) by a video record made before the hearing of the proceeding:

Options (i) and (ii) are examples of spatial evidence giving that will inevitably involvesome use of technology, especially in option (ii). Indeed, the proposal in option (ii)may well be covered by the CRPA, although having said that, section 19 of the CRPAprovides that nothing in the CRPA affects the ability of the Judge to make an order

52 See The History of Simultaneous Interpretation United Nationshttp://www.unlanguage.org/Careers/Interpret/COV/Simultaneous/default.aspx (last accessed 28 June 2014);Jesus Baigorri Jaion From Paris to Nuremburg: the birth of conference interpreting (John Benjamins Publishing,Amsterdam 2014) Translated by Holly Mikkelson and Barry Slaughter Olsen p. 211 et seq, Christina Anna Korak

Remote Interpeting via Skype a viable alternative to in si tu interpreting?http://www.openstarts.units.it/dspace/bitstream/10077/8614/1/Korak_IN17.pdf (last accessed 28 June 2014)53 This is commonly referred to as the mode of evidence.
http://www.unlanguage.org/Careers/Interpret/COV/Simultaneous/default.aspxhttp://www.unlanguage.org/Careers/Interpret/COV/Simultaneous/default.aspxhttp://www.openstarts.units.it/dspace/bitstream/10077/8614/1/Korak_IN17.pdfhttp://www.openstarts.units.it/dspace/bitstream/10077/8614/1/Korak_IN17.pdfhttp://www.openstarts.units.it/dspace/bitstream/10077/8614/1/Korak_IN17.pdfhttp://www.unlanguage.org/Careers/Interpret/COV/Simultaneous/default.aspx


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under s. 103(1) of the Evidence Act that is to make an order that evidence be givenin an alternative way. Thus the provisions of the two Acts, as they affect evidencegiving, run concurrently, although the tests in the CRPA are significantly less onerousthan those set out in section 103(3) of the Evidence Act.

Option (iii) involves a pre-recorded statement and is an example of the use of atemporal form of technology employing a preservational evidence retention system.Once video tapes were used . DVDs are now the preferred p reservational mediumalthough with the development of hard drive cameras it may well be that pre-recorded evidence could be retained on flash drives or small in camera hard drives.

(b) any appropriate practical and technical means may be used to enablethe Judge, the jury (if any), and any lawyers to see and hear the witnessgiving evidence, in accordance with any regulations made undersection 201:

This sub-clause mandates the use of any technology. It is not specific as to thetechnology that may be employed. The usual way that evidence may be given in suchcases is for the pre-recorded statement to be played and then the witness, who ispresent in another location (usually in the Courthouse although this is not required bythe Act) will be cross-examined via CCTV an example of a mixed use of temporal andspatial technologies.

(c) in a criminal proceeding, the defendant is able to see and hear thewitness, except where the Judge directs otherwise:

This sub- clause preserves the presence requirement but does not mandate physical presence. The test is that the defendant can see and hear the witness and it issuggested that this test should be a universal one rather than maintain the archaicrequiremen t for physical presence. I use the word archaic because improved andmodern communications technologies render trial processes so. 54

The grounds for making an order that evidence be given in an alternative way areprimarily for the protection of the vulnerable witness. The grounds recognise thatvulnerability does not necessarily relate to age. Issues such as intellectual, linguistic

and witness fears do come into the mix.

54 The remaining sub-clauses and sub-sections are not really relevant to this discussion but read:(d)in a proceeding in which a witness anonymity order has been made, effect is given to the termsof that order.

(2)If a video record of the witnesss evidence is to be shown at the hearing of the proceeding, the Judgemust give directions under section 103 as to the manner in which cross-examination and re-examination of the witness is to be conducted.(3)The Judge may admit evidence that is given substantially in accordance with the terms of a direction

under section 103, despite a failure to observe strictly all of those terms.


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Presentational TechnologiesTechnology can be used for presentation of other information in the course of the trial.Examples may be found in real evidence, illustrations and documents.

One of the problems in the current criminal trial process involves the use of photographs.

The jurors are provided with a booklet of photos and the witness demonstrates, on a hardcopy photograph that he or she is holding, matters of interest in the photo. Problems ofdistance between jurors and witness can create communication problems, and the markingof the photo with a pen may not be the most accurate way of preserving a reference to amatter of interest.

The projection of photos onto screens resolves the problem of scale. A fifty or sixty inchHigh Definition screen can project an illustration that displays more detail than is apparenton a 5 x 7 photo. The identification of matters of interest can be done with a laser pointer,and markings can be retained on a photo-responsive copy of the image that can later beprinted out.

We are wedded to hardcopy because of the apparent preservational qualities of paper.However, the communication of images and illustrations can be at least as effectivelyachieved using digital technologies. In addition to the large screen, jurors could be providedwith their own screens in the jury box or, alternative, a tablet computer linked to a wirelesssystem to which the illustrative exhibits are transmitted. In addition software tools could beprovided so that jurors could make their own annotations to the exhibit.

Presentational technologies can be used for any of the illustrative or demonstrativerequirements during the course of a trial. In addition, use can be made of the wide range ofpublicly and freely available sources of information that can properly inform the jury of thecontext of events. Utilities such as Google Maps, Google Earth and Street View can be usedas scene setting utilities and that may avoid the necessity of a scene visit. Street layouts, theintersection where the accident took place, the relative location of buildings or commercialpremises to the location of the scene of the crime may all be presented using publiclyavailable resources for illustrative purposes. It is acknowledged that these sources ofinformation are primarily illustrative and may not depict the scene at the moment at whichevents took place. However, as long as there is reasonable contemporaneity with the eventsin question, their use can be considered and could well be helpful.

Documents Digitisation, Searchabilty and Analysis.

From time to time trials will involve documentary evidence often of considerable volume.The usual means of document presentation has been by way of hard copy, often containedin the ubiquitous Eastlight folder. However, there has been progress in the use of digitaltechnologies which have been employed in document presentation in the course of ahearing or a trial.

In addition there are occasions where documents have been created for the purposes of atrial in particular transcripts of intercepted conversations or streams of text messages oremails that are similarly voluminous. While the presentation of these items of evidence maybe enhanced by the use of digital technologies, their use by the jury may be compromisedby the volumes of paper through which the jury must sift to locate and analyse aspects of

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The jury should be presented with documentary evidence in digital format so that they canproperly search for and locate matters of evidence or information that may assist in theirdetermination. Using document analytics tools such as concept searching or e-mailthreading as well as blunt force keyword searching , the jury can more efficiently go abouttheir task of analysing the information that is before them. Using analytical tools the jurymay, for example, identify common threads in recorded conversations, frequently utilisedmodes of expression in text messages and the like. The tolls that are employed in documentisolation and analysis in e-discovery can be made available to the jury to assist in theanalysis of documentary evidence.

3D Rendering an example from the British Museum

Egyptian mummies have been the focus for enquiry and study over the past 200 years. Formuch of that time this could only be done by unwrapping the bodies, giving archaeologistsand specialists one opportunity to carry out their investigations before the integrity of themummy was destroyed forever. A similar situation occurs when the forensic pathologistapplies the scalpel to the body of the deceased to ascertain cause of death. The firstinvestigation compromises the integrity of the evidence, thus complicating subsequentexaminations. Would it be possible to carry out the forensic examination without interferingwith the integrity of the evidence, thus making subsequent reviews possible.

The investigation of mummies provides an answer. The advent of sophisticated scientificimaging techniques since the 1980s has virtually eliminated the need to disturb theircoverings. The non-invasive investigation of mummies, which was previously conductedusing X-Rays has been superseded by high resolution 3D imaging techniques, namelycomputerized tomography (CT) scanning also known as CAT scans (computerized axiam

tomography) A CT scanner also uses XRays but, instead of being static and pointing in onedirection, the source rotates rapidly around the body as it passes through the scanner. Adetector receives the Xrays and a computer is used to create very detailed images of theinside of the body. The images (or tomograms) are recorded as thousands of two-dimensional slices that can be combines using graphic software so-called volumerendering to produce 3D images of the body inside the wrappings.

The technology allows for the separation of layers so-called segmentation and peel awaystructures in order to observe what is beneath each one. This allows for the virtual removalof bandages, skin, muscles, grave goods within the wrapping, organs and skeleton. Itemssuch as grave goods, together with parts of the skeleton can also be rendered using 3D

printing. All this while the mummy remains intact within its wrappings.

The British Museum in its recent exhibition Ancient Lives, New Discoveries hasdemonstrated this technology. 56 Visitors to the exhibition are able to virtually unwrap eightmummies on display as well as study 3D printed copies of parts of the skeleton and gravegoods.

The evidential advantages of this technology flowing from this must be obvious, not only forforensic pathology but for other forms of evidence amenable to CAT scanning whichm