Graham Greenleaf and Andrew Mowbray
A version of this article appeared in the Australian Law Journal, `Information Technology & the Law' column (1993).
Given the subject matter of the Report, it is appropriate that it is the first AIJA publication to be published in computerised form, as well as print. The Report on disk can be searched with free text retrieval and browsed in hypertext using the DataLex Workstation Software, provided by the Report's authors to the AIJA for this purpose.
There is less agreement about the causes of these ill effects. Such studies as there are identify a multitude of contributing factors, many relating to procedural and evidentiary problems, but also including the difficulties of simplifying complex evidence, and the inadequacy of document handling systems. The Aronson Report addresses the procedural and evidentiary causes. In the absence of hard evidence of the relative importance of these contributing causes, estimates of the extent to which information technology can alleviate the problem must be speculative. Although it is possible to identify how information technology will alleviate a specific contributing problem, the overall significance of doing so must await further empirical study. The Report recommends a follow-up study of the lessons and cost-benefits of the use of information technology in selected complex trials such as the Equiticorp trial in New Zealand and the ongoing Rothwells trial in Western Australia.
There is as yet no single program or integrated suite of programs which is clearly best suited for use in Australian trials. The Report found little reason to conclude that the desirable features of litigation support software were generally understood by agencies involved in such trials, and consequently recommended that a checklist for the evaluation of litigation support software should be developed and publicised, possibly based on the American Bar Association's Draft Guidelines for Litigation Support Software.
In the New Zealand Equiticorp trial, imaging technology was subjected to a lengthy practical test in a complex trial which ran for six months in 1992. Over 50,000 pages of exhibits were converted to an image database, accessible independently by all participants in the courtroom. Among the advantages identified by Tompkins J were that witnesses did not ask to see paper copies of documents about which they are being questioned, and seem to have found it easier to refer to documents presented on screen; that 'considerable' time has been saved in dealing with exhibits; that counsel, judge and witnesses have all found it easier to refer to documents; and that there has been less clutter in the courtroom, with judge and counsel requiring virtually no access to paper copies of exhibits. Evidence flowed more smoothly because witnesses were not delayed in addressing documents. The witness could page back and forward within a document image once it was on screen. New documents were selected for the witness by court staff. During submissions, the judge could call up documents on screen to which counsel was referring.
The Report recommends that all agencies involved in complex trials should consider implementing image storage and retrieval of documentary exhibits, and the integration of such document imaging with text retrieval of transcript. Government agencies responsible for court administration should establish at least one courtroom in a State or Territory which is equipped fully to conduct such trials. The court-provided facilities should include at least all necessary monitors and cabling, devices to control the distribution of images, and devices to capture and distribute images of exhibits as presented.
The Report also recommends, as a matter of priority, that the key Commonwealth agencies involved in the investigation and prosecution of complex crime (the Commonwealth DPP, the Australian Securities Commission and the National Crime Authority) should coordinate their use of software, database design, and text and image formats for document control, free text retrieval, and image retrieval, to ensure that there is sufficient compatibility to enable prosecuting agencies to be presented with a 'computerised brief' by investigative agencies. In doing so these agencies should be involved in, and take account of, the development of national standards concerning these matters (discussed below).
Presentation graphics serve three purposes: `Fact' graphics illustrate the most important agreed facts in the case (eg time lines indicating the order in which events occurred, or diagrams to explain the structure of a company or an interlocking group of companies); `Concept' graphics illustrate concepts with which a judge or jury may not be familiar, without any particular reference to the facts of the case being tried(eg reinsurance, the operation of the futures market, how unit trusts work, `DNA fingerprinting'); `Case' graphics show the basis of the allegation, or of the defence, and are therefore different from fact graphics in that they include disputed facts, and inferences which either side argues can be drawn from the facts that they allege. Concept graphics will often require support by expert evidence, and may become contentious if there is expert disagreement concerning the concept. Case graphics will often be contentious, raising claims that inferences are being unfairly presented as facts, or that the graphics have emotive connotations.
The range of presentation technologies that can be used to produce graphical summaries varies from simply using computers to produce static graphics; to `slide show' software that builds up a picture layer by layer; to interactive graphics where the user can choose and control the order in which elements of the graphic appear, customising the extent of explanation needed; and ultimately to computerised animation. There seems to be no direct correlation between the degree of technological sophistication used to prepare and present presentation graphics and their effectiveness. The important factor is to ensure that whatever tools are chosen are appropriate and well used. Too little is known about the exact effects of any types of presentation techniques on juries for there to be any certainty that the most sophisticated technology will be the most effective.
There are no longer any technical barriers to such fully integrated litigation support, and we suggest that such seamless integration (as illustrated in the accompanying diagram) will become the ideal in complex litigation of the future. Such integration will increase the utility of each of the previously separate components.
The Report recommends the development of a number of national recommendatory standards. A standard for transcript formats is needed, covering consistent references to exhibits and witnesses, numbering, text formats and any other matters which will facilitate the input of transcript into a wide range of retrieval programs. Standards are needed for the formats in which images of documents, and computer-readable text of statements and other documents are to be exchanged. Such standards should not be mandatory, due to the rapid technological developments in these areas, but DPPs and other parties should be encouraged to adhere to them, and Courts should take such standards into account when making orders concerning the use of technology in trials. This will help ensure that unfairness does not result from the use of non-portable formats. The national co-ordinating body (discussed below) could organise the development of such standards by appropriate participating bodies.
Numerous procedural and evidentiary reforms are recommended in the Report. If the prosecution is directed to disclose copies of statements of witnesses to be called, exhibits intended to be produced and other documents as directed (as per Victorian Crimes (Fraud) Bill 1992, cl 13(3)), the Court should also be empowered to order that copies be provided in such paper or computer-readable form(s) as it may specify. Legislation to give Courts a 'generalised power to give pre-trial directions' (Aronson Recommendation 9) would ensure that Courts have adequate powers to require the parties to use information technology for the efficient conduct of a trial, and should include explicit provision for the court to determine, as a matter of procedure, the form in which documents will be provided to the court, including any computerised form.
In relation to computer-generated graphics, the Report recommends the adoption of reforms concerning charts and summaries (such as Aronson's Recommendations 12-14) to ensure that they are admissible. A provision such as cl 33 of the Commonwealth Evidence Bill 1991 (which gives the Court a discretion to require evidence to be presented in a summary form, and to provide copies of that summary to other parties) is desirable in relation to computer graphics. When exercising discretion to admit, the court should take into account the extent to which any lack of access by the other parties to the computerised data and software used in generating the summaries may lead to that evidence having prejudicial, misleading or unfair tendencies or qualities.
The argument that computer-literature jurors might dominate the jury, while worth consideration, seems less serious than arguments that literate jurors might have dominated juries when literacy was less common, or (as in most complex fraud trials today) that the jury is open to domination by numerate jurors. The provision of a complex and 'user hostile' retrieval program to a jury as the only means of accessing exhibits would certainly be unfair and allow computer-literate jurors to dominate, but the correct answer to that problem is for the judge to ensure that any retrieval mechanisms provided to the jury are sufficiently simple and 'user friendly' that no such problems arise.
The Report therefore recommends that where imaging technology is used to handle the exhibits in a trial, the jury should be allowed access to the computerised database of exhibits, and an appropriate retrieval system. The trial judge should ensure that the retrieval software provided to the jury is sufficiently simple and 'user friendly', so that the jury can effectively retrieve the exhibits that it needs, and that there is no undue dominance by computer-literate jurors. The trial judge should also be responsible for ensuring that appropriate instructions in the use of the retrieval software is given to the jury, and in a way which does not allow improper access to the jury. If the jury is provided with access to the full transcript, (as some have recommended), then there is no reason to prevent access to that transcript in computerised form, but the judge should exercise considerable caution in approving software for the jury which allows full free-text retrieval of transcript because of the inherent danger of jurors misinterpreting search results. Steps must be taken to remove from the transcript any part of the proceedings that were not heard before the jury, or to prevent the jury retrieving those parts of the transcript. It should also be open to the judge to provide the jury with graphic summaries of evidence in computerised form, but this is also an area where considerable caution is warranted.
The Report recommends a wide range of functions for the IT Service, many of which are already being carried out by the two analogous bodies in the United States, the National Centre for State Courts (NCSC) and the Office of Automation and Technology of the Administrative Office of the United States Courts. The IT Service should operate, for all parties involved in Court computerisation: a national collection of both international and Australian resources on Court computerisation; a central register of products/technologies available to address specific problems of Court computerisation, including details of where they may be inspected in operation; and a national central register of specialist consultants, their experience, products supported, reference sites, etc. These should be searchable from anywhere in Australia, by inclusion as databases in a dial-up system, or by distribution on disk or CD-ROM. The IT Service should also publish regular and detailed publications about court computerisation, run an annual or biennial specialised conference, operate an electronic `bulletin board' service for use by all users of court technologies, and encourage regular meetings for key personnel involved in court computerisation and user groups for technologies with significant use in courts.
Law schools have a role to play. The IT Service should cooperate with one or more Law Schools to utilise computer laboratories for demonstration, teaching and research in the use of court technologies. Such court technology laboratories should, where possible, be integrated with Law School Moot Courts to demonstrate technologies in a courtroom setting. The IT Service should assist the Association of Litigation Support Managers, and other interested parties, to develop one or more standard sets of data relating to complex trials, so as to facilitate demonstration, teaching or research into the use of document management technologies. It should publicise and assist in distributing the standard data sets. The development of courses on computerised litigation support (particularly post-graduate courses) by tertiary institutions, and of continuing legal education courses, should be encouraged and assisted.
The IT Service should only provide such consultancy services as the IT Committee determines are consistent with its other functions. It may provide consultancy services on a fee-for-service basis. Such services should be limited to preliminary advice and planning, assistance in identifying a range of potentially appropriate products and services, and evaluations, but should not involve system implementation.
(The Report is available from the AIJA, 95 Barry St, Carlton South, Victoria 3053 for $20, plus an additional $20 if a copy in computerised form - DOS/Windows or Macintosh - is desired.)
G Greenleaf and A Mowbray