Information Technology in Complex Criminal Trials -

A summary of the AIJA Report

Graham Greenleaf and Andrew Mowbray

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

See also the full Report Information Technology in Complex Criminal Trials (AIJA, 1993).


Information Technology in Complex Criminal Trials is intended to complement the Report by Professor Mark Aronson Managing Complex Criminal Trials: Reform of Evidence and Procedure (AIJA, 1992). The Report commences with surveys of the key technologies in complex trials - free text retrieval of transcript, document summary databases, document image retrieval and presentation graphics - and the progress that has been made in utilising these technologies in various Australian and overseas jurisdictions. It then examines each of these technologies and their use and potential benefits in complex trials in some detail, as well as the procedural and evidentiary reforms needed to ensure effective use. It concludes with an examination of the improvements in communication, education and the setting of standards needed for more effective use of court technologies. A Bibliography lists over 200 books and articles on Court computerisation. The 140 page Report makes 58 recommendations concerning these matters, and the purpose of this article is to summarise their thrust.

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.

Costs and causes of complex trials

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

 There is less agreement about the causes of these ill effects. Such studies as there are 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.

Technologies for court computerisation

Four main technologies have been used for litigation support: transcripts of evidence are searched using free text retrieval software; documents are summarised using database software, and the summaries are then used to produce discovery and exhibit lists, and for case preparation; images of exhibits are stored using document imaging software; and evidence has been summarised in graphic form using various types of presentation software, including `slide shows' and, very rarely, interactive graphics. To date, these technologies have primarily been used in a 'stand alone' fashion, with integration between two of the components at best.

 There is as yet no single program or integrated suite of programs which is clearly best 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.

Managing paper mountains - the 'paperless courtroom'?

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

In the New Zealand Equiticorp trial, imaging technology was subjected to a lengthy 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 - simplifying evidence

A distinguishing feature of a complex trial is a multitude of evidence concerning linked documents or events. The principal purpose of the use of presentation graphics and various forms of summaries is to simplify complex evidence so as to make it more understandable to the jury. Such research as there is into how juries reach their decisions, particularly in complex trials, has little to say about juror comprehension of complex evidence. Despite the lack of hard evidence that this is a major problem in complex trials, there seems to be general agreement among commentators that appropriate use of information technology to summarise evidence is desirable, and of benefit to both judge and jury. For example, Michael Hill QC concludes from United Kingdom experience that 'in most cases of complex ... fraud modern technology provides an essential, not just a desirable, tool to assist in presentation and proof.

 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.

Fully integrated litigation support

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

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.

Standards, procedures and co-operation

Effective use of information technology in trials will require co-operation between the parties, standards on which such co-operation can be based, and new judicial powers and responsibilities to ensure that the interests of justice and those of the efficient conduct of trials are kept in proper balance. The Report recommends a wide range of evidentiary and procedural reforms to this effect, building on the those in the Aronson Report.

 The Report recommends the development of a number of national 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.

Jury access to computerised information

The Report concludes that the effective use of information technology in trials must involve access by jurors to that technology in the jury room. There is some theoretical danger in providing jurors with software to search and retrieve exhibits by various criteria (other than mere exhibit number) that it could be considered that the jury might go 'beyond an examination and evaluation of the evidence provided by [the exhibits], and would have had the purpose of gathering additional evidence' (Kozul v R (1981) 55 ALJR 377, per Gibbs CJ at 381). Where the only retrieval criteria available through the software are such neutral matters as exhibit number, witness name or date of tendering, no such argument could succeed.

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.

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

The Report concludes that a national co-ordinating body is needed to disseminate information, experience and advice concerning the use of information technology by those involved in criminal trials. Subject to its obtaining sufficient funds to do so, the Report recommends that the Australian Institute of Judicial Administration (AIJA) should act as the co-ordinating body. An Information Technology Committee (IT Committee) of the AIJA, with suitably diverse membership, could provide the appropriate representative structure for all of the parties involved in the provision of court facilities and the conduct of trials. A small Information Technology Service (IT Service) should also be established as part of the national co-ordinating body, to carry out all of its recommended functions, except the development of standards, on which matter it would instead provide expert advice. It should be established with a limited duration (preferably three years) after which the need for the continuation of each of its services should be re-assessed.

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