1

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 firstverdict afterwards.'
1



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


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

Introduction Legal Practice and Legal Process as Information Exchange
It has been said that the only asset that a lawyer has is time. This comment probably
originated to justify time costing, a practice which, over the years, has become highly
contestable. But I would dispute the assertion. A lawyers stock in trade is not time but it is
information.
The law is no more and no less than an information acquiring, processing and sharing
occupation. The law in itself is information that limits or allows certain activities. So that a
lawyer may properly advise his client there is an information flow from client to lawyer. The
lawyer may then be required to look up the law in which case there is an information flow
from the source of law, be it legislation or cases, to the lawyer. The lawyer then
communicates 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 choice
as to the course of action that he or she follows.
Likewise Court proceedings are all about information. Information takes certain forms, be it
by way of pleadings which inform the Court what the dispute is about, evidence which
informs 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 it
delivers a decision. In the course of processing the decision the Judge or Judges will embark
upon their own information acquisition activities, looking up the law, checking the
assertions or alternatively having recourse to an internal information exchange involving
Judges Clerks.
In some way shape or form this information exchange process has been a fundamental
reality 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
2

Students of legal history will be well aware of the historical development of the fact-finding
process from its earliest day when jurors were self-informing witnesses, to the jury drawn
from the community informed by witnesses. In our present system juries and judges
objectively assess evidence in all its various forms, by way of oral testimony, documentary
evidence, real evidence such as blood stains, evidence of chemical analysis, expert evidence
and the like.
In some unusual cases, the weight of evidence is so strong that the finding of facts and the
outcome of the case is inevitable. In many other cases the evidence may be circumstantial
or may require the fact-finder to draw inferences in reaching a conclusion as to what the
facts at issue actually are. In many cases, regrettably, considerable reliance must be placed
on that imperfect recording device the human memory. The judicial fact-finding process
is not infallible, nor is it likely ever to be so; however, it is incumbent upon all participants to
consider ways in which the process may be improved.
What does a fact-finder rely upon in arriving at a conclusion? The lawyers immediate
answer would be evidence, but the answer is simpler than that and consists, like evidence,
of one word information. Information is that which informs. It is what underpins evidence.
Perhaps the word evidence is used as a holdover from the days when the nature of the
empirical reasoning process held sway. Substitute the word information for that of
evidence and it is suggested that the same result is reached. Like evidence, information
must be reliable. There are different qualities of information depending upon the source.
Few would dispute that the higher the quality of information placed before a fact-finder, the
more likely it is that the decision will be correct and of a proportionately higher quality.

I suggest that a court is not only a place of adjudication, but also an information hub.
Information is assembled, sorted and brought to the courtroom for presentation. Once
presented, various theories of interpretation are put before the fact-finder, who then
analyses the data according to prescribed rules, and determines a verdict and result. That
result, often with collateral consequences, is then transmitted throughout the legal system
as required either by law reports, academic comment or on-line legal information systems.
The court is thus the centre of a complex system of information exchange and
management.
4


An enormous amount of value is placed upon the giving of oral evidence in a courtroom.
Indeed this is the primary means by which information that informs the factfinder is
conveyed. For reasons which I shall develop, the focus of attention upon the Courtroom and
upon the physical presence of human witnesses is misplaced as the primary and most
effective means of information gathering. Yet to tamper with this aspect of the criminal trial
results in outraged howls, especially from that most conservative of the lawyer classes the
criminal defence bar. What is advanced in defence of the system are a number of myths or
constructed justifications about the importance of presence and evidence giving almost as
holy writ
Some of these constructed justifications include

4
F Lederer The Courtroom as a Stop on the Information Superhighway (1997) 4 Aust Jnl L Reform 71.
3

- The confrontation right a reaction to secret informers and unidentified accusers
that developed from the Continental system, the Inquisition and was associated with
Star 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 fact
finder or enabling a more effective criminal justice process? This paper will examine some
alternatives that will preserve the essence of the adversarial trial but which will enhance the
communication of the information necessary for a proper decision by the fact finder.

Part A Aspects of the Criminal Trial Process
The criminal trial process has evolved from a disputation between parties
5
to the adversarial
system 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 being
that 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. This
process takes the general form of a dramatic contest aimed at shaping two mutually
inconsistent interpretations of common data. A decision-maker, paradigmatically a
jury composed of non-legally trained lay persons, assesses the stories presented to it
and 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 ethically
committed to winning the contest rather than to some other goal, such as discovery
of truth or fairness to the opposing side.

The parties have significantly unequal mutual disclosure obligations. The prosecution
must present its story first, thus permitting the defense an opportunity to assess the
competing story and to adjust its own story accordingly. The prosecution does not
have the power to force the defending party to testify and thereby provide the
prosecution with material for its story. Additionally, the prosecution must satisfy an
extraordinarily high burden of proof-beyond a reasonable doubt-in order to prevail.
Complex evidentiary rules govern the material that may be incorporated into the
parties' stories and the inferences the decision-maker should draw from the
material. Complicated legal instructions are presented to the jury in order to focus
and limit its decisional 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 and
Criminology 118, 120 121
4

This somewhat cynical description of the trial process emphasises some underlying
problems that lie within the adversarial system. If we assume that the adversarial system is
to 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 upon
the oral nature of the criminal trial. Although the dramatic flair of a Marshall Hall or a
Clarence Darrow is no longer in vogue, there is little doubt that oral persuasion plays a large
part in the way in which approaches to information adduced during the trial (evidence) may
be used to determine what the facts are.

This is a very fuzzy and inaccurate method of assessing the facts, relying more on
interpretation than upon objective analysis. If we seek a cause for this problem it lies within
the emphasis upon orality as a means of putting information before the jury (adducing
evidence). Predominantly information comes ex ore and is therefore prone to a number of
random factors which can impinge upon the way that the information is conveyed which, in
turn, 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, as
opposed to scientific matters, in the resolution of matters involving human issues
adversarialism is the best truth-finding system that can be devised. This view is based on the
claim 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 discover
what actually happened. Neither scientists, engineers, historians nor scholars from any
other discipline use bi-polar adversary trials to determine facts.
10
Indeed John H. Langbein
suggests that in the Anglo-American criminal trial the job of each adversary is to win a
courtroom struggle which could and does entail tactics that distort or withhold the truth
such as the concealment of witnesses or withholding information that may assist the other
side.
11


The Criminal Trial as Ritual
It may be observed from the quotation from Goodpater above that the adversarial process
is accompanied with a considerable amount of ritual, much of which creates an aura of
mysticism, clothing the professional players such as the judge and the lawyers with an
esoteric 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 the
most ritualized functions of social life.
12
One need only visit a courtroom or read a judgment to find
a 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 society
through such means as formal education systems, media, authoritative pronouncements
and word of mouth. A cultural belief system allows us to attach meaning to symbolic
representations that appear in culturally determined contexts. Thus, the imagery of the
courtroom the dignity of the proceedings, the impartiality of the judge, the adversarial
posture of the litigants and the juxtaposition of symbols of authority the coat of arms, the
black robes, police uniforms all communicate culturally determined meaning.
13


Criminal trials are an important representation of social rituals that solidify community
values in two ways. The trial defines the community by deciding what is and is not
acceptable by deciding an accuseds guilt or innocence. Those who are found guilty may be
excluded from the community for a defined period of time or, in the case of the death
penalty, permanently. Thus, the jury represents and defines the community by determining
continued community membership.

In addition to defining the contemporary community, the criminal trial as a social ritual
defines the community through time. The trial is a representation of a democratic rite
connecting the present to the past and the ideals underpinning the justice system within a
community. The ideals that shape and provide structure for the criminal trial invest it with a
special form of ceremony, confirming it as a distinctly Anglo-American complex of concepts
and ideals that define the relationship between the State and the individuals who make up
the 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 of
the Role of Public Defender and a Proposal for Reform (1994) 32 Am Crim L Rev 743, 745-6
6

The proceedings have an intensely formalistic ritual. The judge, lawyers and court officials
have their set places within their given areas. They move in accordance with a set of formal
rules, starting with the judges formal entry. The judge is robed, in some jurisdictions
accompanied by a bailiff or a tipstaff, and supervises the proceeding through its course
which will involve a number of set stages. From the high formality of the commencement of
proceedings, the participants respect each others space and use a highly ritualised language
which 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 the
proceedings with its emphasis upon an exaggerated politeness and the use of restrained
and 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 are
passive participants. They begin their role as a small audience and receive little direct
information about the formalities of the proceedings, the structure of the trial and the limits
If youre going to be logical, if youre going to
use reason, and thats the justification for
making a determination, for deciding this is
free speech and this is protected and that is
not, why do you have to wear robes
Ethan Katsh The First Amendment and
Technological Change: The Media Have a
Message (1989) 57 Geo Wash L Rev 1459

7

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

indirectly through 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 jurors
on how to treat various matters they see and hear. All of these impressions and
overt 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, although
carrying with it resonances from history as far back as at least the seventeenth century,
originates from and creates some identifiable responses and attitudes. The ritual
emphasises 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 in
the community that uses the ritual. Depending on its forms, ritual may also invoke
and symbolically enact some community value or ideal. Engaging in ritual both
expresses and creates community; it is a way of participating, sharing, binding and
confirming.
15


Goodpaster suggests
16
that the ritual elements of the adversarial criminal trial are tied up
with 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 the
framework of trial formalities, etiquette and the rules of evidence, jurors are spectators to a
show, produced and directed by the lawyers who are also the principal actors. The show is a
form of competition between the parties, the outcome of which is the determination of a
correct (true?) version of past events. The lawyers are on stage throughout the
performance, playing their parts and gradually revealing the contesting stories of past
events by bringing forward other actors to tell their story and advance the particular theory
of 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, although
directed, are unrehearsed. Although the trial takes place in the present, its focus is upon the
past. The plot of the trial is about a contest between two different stories, the difference
turning upon different alleged factual versions of the same event. The moral underpinning
of the story is, from the point of view of the prosecution, the violation of a community norm
of conduct. From the defence point of view there may be a number of moral underpinnings
ranging 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.
8

standards of the community. From the perspective of both sets of participants the greater
moral 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 their
unstated subtext the opposition between the government and an individual. In this
subtext, the government has two possible roles: the role of legitimate law enforcer
and the role of oppressor of freedoms. The defendant is also cast in the ambivalent
roles of a criminal, a deviant, or a potentially oppressed individual. At the conclusion
of the trial, both stories, as well as the implicit subtext, are proferred in formal
equipoise to the jury for judgment as to who has won the contest, accuser or
accused. The jury is formally free to accept or reject either story or to compose its
own story from the materials of the factual versions presented. The jury does not
have 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 defendant
or 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 it
has witnessed. In reaching its judgment, the jury also reads the subtext of the drama
and implicitly decides which roles the principal players occupied.
17


Criminal Trial Process as Anachronism
It will be observed from the above discussion that the criminal trial ritual requires all
participants to gather together in the one place. Only then can the ceremony proceed. This
may reflect community interest, the gathering together of a community to consider and
assess 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 the
proof the fitness, truth, strength, or other quality of anything
18
could apply as much to a
scientific experiment as it may to a criminal jury trial. But the one word actually goes
beyond the method of analysis contained in the OED definition, and encapsulates a host of
elements. Essential is that of presence.
What is it that compels the necessity for this important custom of presence. In examining
this question the words of Claude Levi-Strauss must be borne in mind.
The survival of a custom or a belief can in fact be explained in two ways. Either the
custom 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 survived
because through the centuries it has continued to play a role and because this role is
the same as might account for its initial appearance. An institution can be archaic
because 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 cause
by 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 trial
by the country, trial by jury, trial by proviso; The determination 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 Oxford
English Dictionary 2nd Ed. 1989 DVD Version.
9

existing is so fundamental that any transformation of its ways of acting has been
neither possible nor necessary.
19


The issue becomes one of whether the rituals and processes of the jury trial are an historic
residue or that they continue to play a role. Does what has become the physical presence
trial actually require the physical presence of all the participants to achieve a proper
outcome.
The Confrontation Right
It is at this stage that a discussion about the confrontation right becomes relevant because it
provides a philosophical underpinning for the physical presence criminal trial.
In New Zealand the New Zealand Bill of Rights Act provides at section 25 that a person
charged with an offence in relation to the determination of the charge has a number of
minimum rights, among them:
(e) the right to be present at the trial and to present a defence relates to the
presence of the accused but does not say physically present:
(f) the right to examine the witnesses for the prosecution and to obtain the
attendance and examination of witnesses for the defence under the same
conditions as the prosecution suggests presence but may not be limited to
physical presence:

In addition, Section 83 of the Evidence Act 2006 provides for the ordinary way in which
evidence is to be given in Court. This section goes further than section 25 NZBORA and
underpins the concepts of orality and physical presence.
83 Ordinary way of giving evidence
(1)The ordinary way for a witness to give evidence is,
(a) in a criminal or civil proceeding, orally in a courtroom in the presence
of
(i) the Judge or, if there is a jury, the Judge and jury; and
(ii) the parties to the proceeding and their counsel; and
(iii) any member of the public who wishes to be present, unless
excluded by order of the Judge; or
(b) in a criminal proceeding, in an affidavit filed in the court or by reading a
written statement in a courtroom, if both the prosecution and the
defendant consent to the giving of evidence in this form; or
(c) in a civil proceeding, in an affidavit filed in the court or by reading a
written statement in a courtroom, if
(i) rules of court permit or require the giving of evidence in this
form; or
(ii) both parties consent to the giving of evidence in this form.
(2) An affidavit or a written statement referred to in subsection (1)(b) or (c)
may be given in evidence only if it

19
Claude Levi-Strauss The Elementary Structure of Kinship (Beacon Press, Boston 1969) p. 2.

10

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

There are two major exceptions to the requirements of section 83. One lies in the provisions
of section 103 et seq of the Evidence Act 2006 which provides for the manner in which
evidence may be given in an alternative way. The other may be found in the provisions of
the Courts Remote Participation Act 2010 (CRPA) which allow for the use of audio-visual
systems to be employed to enable participants in proceedings to be virtually present. This
latter Act enables significant inroads into the concept of physical participation. Section
103 et seq and the provisions of the CRPA are examples of temporal and spatial alterations
to the giving of evidence and the requirement for presence and will be discussed in more
detail below.
In the United States the provisions of the Sixth Amendment are not as specific about
participation 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 manner
of its interpretation also gives rise to some faulty premises about the historical background
to the confrontation right. This erroneous foundation has permeated our thinking about
the importance of the confrontation right to the point where, in New Zealand it is
statutorily enshrined.
The Sixth Amendment provides:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public
trial, by an impartial jury of the State and district wherein the crime shall have been
committed, which district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be confronted with the
witnesses against him; to have compulsory process for obtaining witnesses in his
favor, 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 Sixth
Amendment and expressly in section 83 of the Evidence Act 2006 and the right to examine
or 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 to
cross-examination.
The historical justification for the confrontation right and its origin is debateable. Yet the
confrontation right does have some modern rationale.
The Modern Rationale for the Confrontation Right
Richard Friedman advances seven purposes for the confrontation right
20
:
1. Openness. Confrontation guarantees openness of procedure, which among other
benefits ensures that the witnesss testimony is not the product of torture or of
milder forms of coercion or intimidation. This is particularly important given the
contrast 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 Court
Review 439 442-3
11

privately was very common. One would have expected in the twenty-first century
that the use of torture would have been at least an anachronism and at worst a war
crime practiced by ruthless totalitarian governments and inimical to the values of
Western democracies. The treatment of terror suspects following 9/11 challenges
those assumptions.

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

3. Discouragement of Falsehood. Confrontation discourages falsehood as well as
assisting in its detection. The prospect of testifying under oath, subject to cross-
examination, in the presence of the accused makes false accusation much more
difficult than it would be otherwise, or so at least is the well-settled belief. But does
cross-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 to
assess the demeanour of the witness. It should be noted that modern assessments
of credibility rely less and less on demeanour which has largely been discounted as
an 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 of
prosecution witnesses serves a strong symbolic purpose that has been recognized
in the United States. Even if confrontation had no impact on the quality of the
prosecutions evidence, it would be important to protect because, there is
something deep in human nature that regards face-to-face confrontation between
accused and accuser as essential to a fair trial in a criminal prosecution.
21
It speaks
to 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 mere
anachronism

7. The Weight of History. The symbolic value of confrontation is enhanced by the
history of the right. Indeed, the very fact that for many centuries accused persons
have had the right to confront the witnesses against them makes it especially
important to continue to honour that right. This, of all the purposes, is the most
debateable, 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) 476
US 530, 540.
12

It is important to note that there is no suggestion that the confrontation right had anything
to do with the issue of whether or not testimony was reliable. It was a rule that
underpinned the manner in which testimony was taken. A witness may not be heard for the
prosecution unless the accused has an opportunity to be confronted by him or her the
witness 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 and
adversarialism began with the increased role of the defence lawyers in the criminal trial. Yet
there is no suggestion of the development of a confrontation right that went hand in hand
with adversarialism. Indeed, the reasons for the development of the adversarial trial seem
more tied up with inequality of arms and concerns about the reliability of evidence and
subsequent convictions than the right of an accused to confront his accuser.

Notwithstanding the confrontation right, the trial ritual with its emphasis on orality and
reliance 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 number
of 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 the
problems of oral evidence may be mitigated. This involves the use of technology and some
of the solutions that I propose challenge many of the established rituals and practices of
criminal trial procedure.

In light of new technologies that enhance information exchange, the justification for the
physical presence trial with oral, presence based evidence-giving processes are no longer
valid 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 including
adversarialism. But the focus of adversarialism should be upon information testing.

Technology provides some of the solutions to effectively placing information before the
fact-finder. However, it has been observed that technology leads to a disenchantment with
and 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 so
that the concurrence and authority that they cast on the thing that they adorn appear
consubstantial with the exercise of justice.
23


The next section will address some of those challenges in considering the greater use of
technology 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
13

Part B Using Technology to Improve Process
I now turn to the use of technology in the trial process. But before embarking upon specific
examples, there are some general matters that need to be considered, and perhaps one of
the most important of these relates to the use and expectations of information by younger
generations. Should the information values and expectations of a sixty-eight year old who
grew up in the days before television, dictate the information uses and expectations of the
digital native?
Drivers for Change
In the main, lawyers are slow adopters of new technologies, and the criminal defence
lawyer is perhaps one of the most conservative, especially if proposals are put in place that
make 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 acknowledges
that it cannot be sure. As the US Supreme Court said in Scott v Harris
24
the technology
speaks for itself.
Resistance to change does the criminal trial little good. If anything it compromises its
effectiveness and its credibility in the minds of the public. There are certain imperatives that
are driven by technology. Those who are voting for the first time in the 2014 election in New
Zealand 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 Marc
Prenskys digital natives.
25
Prensky was writing about students and their use of technology
but the University students of whom he wrote in 2001 are now adults and available for jury
service.

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

It is now clear that as a result of this ubiquitous environment and the sheer volume
of their interaction with it, todays students think and process information
fundamentally 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 Horizon
1http://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 a
brief introduction the the development of Presnskys theory see Wikipedia Digital
Native 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 November
2010 http://www.legalnews.com/detroit/803882 (last accessed 6 August 2014).
26
Ibid. Prensky.
14

Prenskys digital natives are native speakers of the digital language of computers, video
games and the Internet. Those who were not born into the digital world but have, at some
later point in life, become fascinated by and adopted many or most aspects of the new
technology are digital immigrants. Prensky suggests that the difference is important
because, like it or not, digital immigrants speak with a different accent from digital
natives.
As Digital Immigrants learn like all immigrants, some better than others to
adapt to their environment, they always retain, to some degree, their accent, that
is, their foot in the past. The digital immigrant accent can be seen in such things
as turning to the Internet for information second rather than first, or in reading the
manual for a program rather than assuming that the program itself will teach us to
use it. Todays older folk were socialized differently from their kids, and are now in
the 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 language
they may be classed as digital aliens those who wish to have nothing to do with the digital
paradigm, who do not wish to engage with the new technology or will not do so, and who
resist the changes that new technologies demand of them. This grouping is normal in the
introduction of a new technology. It is part of the normal co-existence of technologies until
a new technology has been universally received, and the digital natives become an
overwhelming majority.
28

Lord Chief Justice Judge recognised the digital native issue and put this into the context of
the jury trial when he wrote:
Let me now consider my grandchildren. Not perhaps the youngest two, but the
teenagers. They are technologically proficient. Much of their school work is done by
absorbing information from machines. They consult and refer to the Internet. When
they do so they are not listening. They do not, as we did, sit in class for 40 minutes
listening to the masters and mistresses providing us with information. They are
provided with information in written form, which they assimilate into their own
technology.
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 Apple computer was first came on the market When Apple first started out, people
couldnt type. We realized: Death would eventually take care of this. Wall St Journal All Things Digital Conference April
2003, San Francisco. The report of the comments is at The Mac Observer Website Steve Jobs: No Tablet, No PDA, No Cell
Phone, Lots Of iPods 4
th
June 2003
http://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 November
2010) http://www.judiciary.gov.uk/media/speeches/2010/speech-by-lcj-jsb-lecture-jury-trials (last accessed 4 April 2012).
15

What is perhaps so dramatic about this passage is that His Lordship describes a trial system
that depends upon orality as its focus, and perhaps what he fails to recognise is that the
Digital Natives find such a means of absorbing information incompatible with the way in
which their learning systems are becoming adapted as a result precisely of the technological
proficiency to which His Lordship refers. The means of information gathering is radically
different 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 place
within a circuit of larger connectedness. The vast resources of the network are
always there, potential, even if they do not impinge on the immediate
communication. Electronic communication can be passive, as with television
watching, or interactive, as with computers. Contents, unless they are printed out (at
which 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 take
precedence over logic and concept and detail and linear sequentiality are sacrificed.
The pace is rapid, driven by jump-cut increments, and the basic movement is
laterally associative rather than vertically cumulative. The presentation structures
the 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 a
heightened and ever-changing awareness of the present. It works against historical
perception, which must depend on the inimical notions of logic and sequential
succession. If the print medium exalts the word, fixing it into permanence, the
electronic 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 to
make up todays juries dwell. They have been brought up on an information rich,
technologically based environment. Their expectation is that the information processing
that leads to the decision of a jury will use the information gathering, presentation and
analytical tools to which they have become accustomed. To expect them to do otherwise is
to allow archaic systems of information exchange prevail for no other reason than ritualistic
processes and this the way that it always has been done. It is time to consider a dramatic,
possibly revolutionary, change.
The Technology Taxonomy
Professor Fred Lederer, Director of the Center for Legal and Court Technology at the
College of William and Mary Law School made the following comment:
Most evidence is and will be digital in nature, largely eliminating any need to show
the "original" physical exhibit in evidence. Indeed, as most people are visually and
data oriented, jurors and even judges will expect to see as much information as
possible 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 be
visually 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.
16

we think the short-term future will bring-a huge increase in recorded incident video.
It's hard now to have something happen in the world without recorded video from
phones and tablets.
31

Much information that is not in digital format can be digitised and information in digital
form requires digital systems to present it. This involves an understanding of the
classification of communications technologies. I suggest that there are five major categories
of information technologies that may be used in the court process. The lines between some
of these may be blurred and one technology type may in fact fulfil two or more roles within
the court process. Essentially, the information technology types are:
(i) communicative;
(ii) evidential;
(iii) presentational;
(iv) preservational; and
(v) analytical.

Communicative Technologies
Communicative information technology refers to those technologies allowing for
communication within the court, within or beyond the court building. Communicative
information technology may encompass such mundane items as telephone, fax or telex and
include any mail, teleconferencing and video-conferencing equipment. Using technology
means that it may not be necessary for the court to adjourn for an undue length of time
while counsel retrieves papers that have been left at the office, or while a witness
retrieves a document that has been left at his or her place of business. In terms of pre-trial
conferences and the like, place does not matter. Pre-trial conferences may be
teleconferenced or video-conferenced and, indeed, communicative technologies also
impinge on evidential information technology in that, of course, evidence can be video-
conferenced, or given by way of video-link.
Evidential Technologies
Evidential information technologies fall into a number of subcategories:
evidence presented to the court by way of a witness not present in the
courtroom (for example, video-conferencing or remote testimony);
the use of information technology to present documentary evidence (for
example, as used by the Serious Fraud Office or in cases where there are a
large number of documents);
the use of information technology to demonstrate or explain a process;
the use of information technology or computer-generated images or digital
photographs for evidential illustrative purposes; and

31
Fred Lederer Some Thoughts on Technology and the Practice of Law (2014) The Bencher (a bi-monthly
publication of the American Inns of Court) http://home.innsofcourt.org/for-members/current-members/the-
bencher/recent-bencher-articles/januaryfebruary-2014/some-thoughts-on-technology-and-the-practice-of-
law.aspx (last accessed 23 June 2014)
17

the use of information technology images for the purposes of expert
evidence or for the purposes of reconstruction.
Presentational Technologies
Most audiences at seminars or conferences are familiar with PowerPoint or other forms of
image presentation software which enhance the speech or discussion of the paper to be
delivered by the speaker. Indeed, the common word that is given at conferences these days
for a speaker or keynote address is presentation.
Presentation material can assist in the explanation of a particular point, submission or
argument. Within the context of a court case it is more likely to be used by counsel, but
could also be used by an expert witness and may be used by judges while summing up to
the jury. Presentation software may use words, graphics, moving images or sounds
(collectively described as multi-media) to explain or enhance the point at issue. In the hands
of counsel it could primarily be seen as a persuasive tool but that does not reduce the value
of its utilisation as a means of information communication.
Preservational Information Technologies
Preservational information technologies relate to the way in which evidence may be stored
or recorded as part of the trial process.
New Zealand courts currently employ a digital audio evidence recording system which
involves the recording and retention of an audio file in digital format from which a transcript
may be made. Transcripts may be made almost instantaneously. The audio file is sent by
means of a computer network system to remote transcribers. The audio file is transcribed
into a written document which is then sent back to the court and either printed or made
available as a word processing document. Sometimes the transcription is delayed and only
made available for particular reference purposes or for the purposes of an appeal. In
addition the audio file may be played back. This is particularly useful in jury trials where
jurors may wish to hear the evidence as it was given rather than reading it from the
transcript, copies of which are routinely made available to jurors while they are deliberating.
There are a number of different types of digital audio recording systems, all operating from
the same premise. Many systems use a proprietary file format which makes it difficult to
exchange audio files from one software system to another.
A digital information recording system now means that a video record may also be kept of
court proceedings. Although videotape has been with us for some time, a significant
difficulty with the medium has been the search and retrieval functions of the video record.
Digital video makes such searching and retrieval much easier than before.
The importance of a digital audio or video record over that of a written transcript is that an
appeal or review court is able to scrutinise not only what was said and done but how it was
said or done. Many lawyers will be familiar with the spin that can be placed by a judge on
an otherwise innocuous direction to a jury by means of a tone of voice. This of course is not
available to an appeal court on a written transcript.
Traditionally, appellate courts defer to the evaluation of demeanour evidence and the
findings of credibility by the trial court although the deference of appellate courts to
findings of fact based on aspects of physical presence is no longer as great as it used to
18

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

A comprehensive multi-media record necessarily forces one to ask whether appeals might
become in effect de novo appeals. It is suggested that an appellate court would feel far freer
in its review if it had available nearly everything that had happened below. Preservational
information technology means that an appeal court may be more properly informed of the
basis 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 not
require as much space as a paper-based record. Preservational and archival technologies
mean that bulky and difficult to store paper files can be reduced to a digital format and
stored in less space.
Analytical Information Technologies
In general the term analytical information technologies refers to software systems which
may interpret or order data. A relational database is one example. The various products that
are used in the E-Discovery process provide others.
The ability of digital systems to order data may be simplistically demonstrated in the
ordering 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 precursor
substances for the manufacture of methamphetamine. A large number of transactions
taking place over a significant period of time involving a large number of dates, geographical
locations and chemist shops, may be sorted into chronological order demonstrating a
purchase 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 in
the analysis thereof.
One of the qualities or affordances of digital information is the searchability of data. It was
this quality, and its use as a form of analytical tools that underpinned the provision of all
written material in digital form to the jury in the cases over which Judge Wilson QC and I
presided. It seemed to us that this was the next logical step in assisting the jury in its role to
consider and analyse the evidential material that had been put before them without having
to 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 analysis
when other tools were available seemed to both of us to be counter-productive and
possibly more prone to error.
Spatial and Temporal Technologies
Within the categories of evidential and communicative technologies there are two
additional categories spatial technologies and temporal technologies.

32
Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141
33
One study in Kentucky has suggested that when using video records the Court of Appeals is somewhat less
inclined 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 State Courts,
1990). See http://contentdm.ncsconline.org/cgi-bin/showfile.exe?CISOROOT=/appellate&CISOPTR=1 (last
accessed 3 June 2011).
19

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 from
the signal fire, semaphore, telegraph and wireless to radio, television and Skype. In terms of
the 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. The
underlying themes of the legislation is to enable participation in Court proceedings from a
distance by the use of communication technologies. There are two concerning features
about this legislation. The first is its underutilisation by Courts and participants. Most of the
time, the Act is employed in remand hearings in criminal cases. The other is its restrictions
on use in the criminal trial process.
Temporal technologies are those that allow information to be gathered, collated and stored
and used at a later time. Again, there are examples of temporal technologies that predate
digital 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 an
interview all provide examples. Digital technologies now present us with a wider range of
temporal evidence gathering and presentation techniques. One example is the use of
recordings from static CCTV cameras in buildings or on city streets. Another may be found in
recordings derived from body-worn cameras by police officers in London which have been
the subject of a recent trial.
34
In the United States the US Supreme Court accepted the
presentation of video evidence of a high-speed pursuit. Such procedure is quite uncommon
in the Supreme Court and was viewed as part of an interesting relationship between the
Supreme Court and technology. The video had a strong effect on the court and is viewed as
a major factor in how the court made its decision.
35

The practice of using recorded interviews of the accused or of recordings of intercepted
conversations either by telephone or a remote listening device are examples of temporal
technologies. A mode of evidence application under s. 103 Evidence Act 2006 seeking leave
for a recorded interview of the complainant to be played as evidence in chief, and for
contemporaneous cross-examination to take place with the witness located in another
room in the Courthouse
36
provides an example both of the use of temporal AND spatial
classes of technology.
This is not the place to debate the legal requirements surrounding the use of spatial or
temporal 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 2014
http://www.theguardian.com/uk-news/2014/may/08/police-london-issued-body-worn-cameras (last accessed
22 June 2014).
35
Scott v Harris above n.23. The video may be found on YouTube at
https://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 Donald Braman Whose
Eyes 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 the
basis that the Court may need to exercise some supervisory function over the witness, but for no other
purpose.
20

temporal technologies and there remain certain issues about the use of spatial technologies
where 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 of
evidence giving that have surrounded the criminal jury trial. These procedures were
perfectly satisfactory in an era where communication imperatives and an absence of the
range of communication technologies present today mandated the physical presence
participation model of the criminal jury trial. One of the justifications for the physical
presence participation model was the reliance upon the confrontation right. Its role in the
lawyer speaks model of the criminal trial is redundant. In reality the presence
participation model was more apposite to the accused speaks trial described by
Professor 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 is
constitutionally and statutorily mandated. It is my argument that the essential elements of
the confrontation right may be maintained through the use of information technologies
whilst dispensing with the inconveniences and costs of the physical presence participation
model.
The justification for witnesses to be physically present in the Court for examination is no
longer relevant when virtual presence by means of a high definition screen can enable a
better and clearer view of a witness than is possible from a jury box across a courtroom to
the witness stand. The questionable value of demeanour suggests that this justification for
presence 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 be
virtually present without compromising rights under the New Zealand Bill of Rights Act,
If it is accepted that the requirement for physical presence is no longer necessary, it is
nevertheless 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 to
the provisions of section 83 of the Evidence Act 2006.
What must be remembered is that the provisions of the CRPA involves spatial
considerations. It envisages the contemporaneous involvement of participants. This
contrasts 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 is
referred to a mode of evidence application.

37
However, for a detailed consideration of the use of spatial technologies for off-shore participants in the
context, not of the Courts (Remote Participation Act 2010 but by way of an application pursuant to s. 103 of
the Evidence Act 2006, see the decision of Stevens J in Deutsche Finance NZ Ltd v CIR (2007) 18 PRNZ 710
where 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 remote
off-shore participation under the Courts (Remote Participation) Act.
38
Langbein above n. 5 especially p. 48 et seq.
21

The purpose of the CRPA is to enable a greater use of audio-visual links (AVL) in New
Zealand courts.
39
The Act sets out the criteria for consideration of the use of AVL in court
proceedings. There is a presumption in favour of AVL in criminal procedural matters where
no evidence is being presented unless the judicial officer is satisfied on his or her own
motion or on the objection of any party that the criteria would not be satisfied. It allows for
the use of AVL in criminal substantive matters where evidence is being presented on the
application of any party or on the judicial officers own motion where the judicial officer
considers that the criteria would be satisfied, but AVL must not be used for the appearance
of a defendant at trial that determines his or her guilt or innocence unless the defendant
consents to that use.
40
However, it does not mandate the physical presence of a witness or
indeed 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 language
of 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 impact
of the use of the technology on the effective maintenance of the right of the defendant to a fair
trial 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 adverse
impression may be mitigated.

If a defendant consents to the use of AVL at trial the judge may direct the jury that it must
not 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 enable
both 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.
22

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 the
use of AVL for the appearance of a defendant in a trial that determines his or her guilt or
innocence unless the defendant consents to its use.
The AVL Trial
The Act provides a significant recognition of the potential for communications use. Although
it dispenses with the need for physical presence it maintains the essential aspects of the
confrontation right. The accused is able to hear the evidence that is given. There is the
ability for cross examination. The availability of high definition screens means that there will
be 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 of
video-conference technologies available. At the moment New Zealand Courts use a
dedicated Voice\Video over IP system that is effective but expensive and is not widely
available.
In late May 2014 I participated in a test of video-conferencing software and electronic
bundle software in a mock international trial.
43
All the participants were scattered
Auckland, New Zealand, Washington DC, London, Croydon and Edinburgh. The
communications software used was Microsoft Lync and the Electronic Bundle was provided
by Caselines, a product of Netmaster Solutions, an English company. The trial rapidly
established the feasibility of the software tools, both of which are reasonably priced and are
browser based which meant that no additional software needed to be installed on a users
computer. In addition, the software meant that place did not matter a classic example of
the 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 officer
or Registrar considers appropriate


42
CRPA s 12.
43
For reports see
http://www.lawgazette.co.uk/5041446.article?utm_source=dispatch&utm_medium=email&utm_campaign=G
AZ020614 (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 27
June 2014) and for an interview with Judge Simon Brown QC on the effectiveness of the trial see
https://www.youtube.com/watch?v=7r8RUwORvkc&feature=youtu.be (last accessed 27 June 2014)
23

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 be
conducted in such a way, but if all the other criteria for AVL utilisation could be fulfilled
there is no statutory impediment for a hearing to be conducted in this way. Certainly, when
one looks at the possible scope of CRPA, one can see that the Act provides a significant
exception to the provisions of section 83 of the Evidence Act, yet maintains a form of
virtual confrontation. The physical presence trial could become a thing of the past with
the bold use of the CRPA.
Expanding the Use of the Remote Participation Act
The 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 rule
implied by s.25(e) of the New Zealand Bill of Rights Act 1990. The other related to some of
the technological shortcomings surrounding the use of AVL. While very few, if any, opposed
to 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 that
without physical presence an accused could not keep tabs on the cozy conversation
between counsel, the inattentive or snoozing juror or, worse still, the sleeping judge or that
the camera may not be playing on the key participants at a vital stage. Such a suggestion
ignores split screen and multi camera technology, along with voice activated cameras and
swivelling cameras. The days of a single static camera are long gone. At no stage in the
debate did there seem to be a consideration of the advantages or shortcomings of the use
of technology to fulfil the purposes of the Bill of Rights Act or the Evidence Act. Rather, the
visceral reaction was based upon the outrageous suggestion that a trial could take place
other 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 in
courtrooms that are specially equipped with expensive AVL equipment. This may well result
in a significant cost saving for what are essentially procedural roll-over remands. The
disturbing thing is that although greater use could be made of AVL, until the necessary
equipment is made available, this form of technology use, which could be significantly
beneficial for witnesses together with savings in fees for counsel from a distance, is
languishing. There are alternative means available for providing AVL that do not involve the
expensive, dedicated systems currently in use. But as I have said, lawyers are slow adopters
of technology, and it is doubtful that they will lead the charge towards the greater
utilisation of AVL.
Enhancing Orality
I have emphasised that we continue to use oral evidence as the principal means of putting
information before the fact finder. There will always be room for orality in the criminal trial
process but there are shortcomings in this form of information recall and transmission some
of 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);
24

Problems with Oral Evidence
What, therefore, are some of the problems that surround oral testimony? Do these
problems undermine the mystique that surrounds human witnesses and that demands their
presence in Court.

1. Memory recall.
Sir Edward Coke, in promoting his Reports, referred to slippery memory. In terms
that demonstrate how attitudes to the written record had changed over the
centuries, he said
Nothing is or can be so fixed in mind or fastened in memory, but in short
time is or may be loosened out of the one, and by little and little quite lost
out of the other, It is therefore necessary that memorable things should be
committed to writing (the witness of times, the light and life of truth,) and
not wholly betaken to slippery memory which seldom yieldeth a certain
reckoning
45

Sir Edwards comments are as valid now as they were then. Memory is indeed
slippery and recall of events differs from person to person depending upon their
position and perspective.

Furthermore recall of events dims with the passage of time, or becomes modified.
As details fade an editing or mental shorthand process takes place where the
highlights of an incident may remain but the detail is lost. Cross-examination on
detail may be futile in eliciting facts but may be successful in undermining a witness
who may, in broad strokes, be painting a picture of truth. Yet we expect witnesses
to recall events of some months or years past, based on memory. We criticise
witness coaching. We allow notes made at the time to refresh memory rather
than allow them to be more fully used. Surely their contemporaneity would render
them more reliable than slippery memory
2. The problem of demeanour.
In recent years, the value of demeanour evidence in assessing credibility has been all
but rejected at least by science if not law.
46

In a highly controlled laboratory environment it seems possible to make accurate
conclusions (albeit very limited) on the truthfulness of an individual from their
demeanour. The courtroom as a highly charged, intimidating, inherently
confrontational and dehumanising environment is as far from such a scientifically
controlled environment as one could get.
47


Demeanour is often advanced as a matter bearing upon credibility. Gallavin gives the
following example - Expert A is a strong speaker, articulate, confident, forthright,

45
1 Cokes Reports Preface to the Reader (Thomas Wight, London 1600) Unpaginated.
46
That may well be changing in light of changes to appellate deference to the advantages that a trial judge had
of hearing and seeing the witness see Austin, Nichols & Co Inc v Stichting Lodestar [2008] 2 NZLR 141
47
Chris Gallavin Demeanour Evidence as the backbone of the adversarial process Lawtalk Issue 834 14 March
2014 http://www.lawsociety.org.nz/lawtalk/issue-837/demeanour-evidence-as-the-backbone-of-the-
adversarial-process (last accessed 20 June 2014)
25

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

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

Why has demeanour been considered important? Professor Ian Coyle puts it this
way:
In practice, this means attending to verbal and non-verbal indicia of
truthfulness, in addition to considering collateral information that may refute
or confirm a witnesses recollection. In many cases, where competing
versions of events are given, the assessment of such indicia are of great
import: sometimes it may be the only basis on which a decision can be
arrived at. Legal training and experience confers no special benefit in
detecting deception in forensic contexts. There is no compelling evidence
which proves that lawyers generally, and judges in particular, operate at
anything better than chance level when detecting truthfulness, although
there is a danger that they may think otherwise. And there is an abundance
of evidence that jurors attend to unreliable indicia of deception when making
their decisions.
48


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

An impressive witness according to Anglo-Australian culture will look his or
her questioner in the eye and answer questions confidently and clearly. In
other cultures, however, direct eye contact maybe considered rude and
challenging... such responses may be misunderstood as demonstrating
evasiveness or shiftiness on the part of the witness.
49


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

Apart from gaze aversion, other global, pan-cultural, stereotypes of lying
included the entrenched beliefs that liars shift posture (65.2%), touch and
scratch themselves (64.8%) and tell longer stories than usual (62.2%). None
of these stereotypes are accurate (The Global Deception Research Team,
2006). More generally, a very significant proportion of laypersons and
professionals beliefs about non-verbal and verbal cues to deception have
been 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 Criminal
Lawyers Association of Australia and New Zealand 3 April 2013 p. 8.
49
Equal Treatment Benchbook of the Queensland Supreme Court (2006) p. 75.
26

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



Coyle suggests that proper directions or counter-intuitive expert evidence should be
given to jurors to correct well-entrenched misconceptions of which behavioural
indicia are indicative of deception. But the problem remains. Demeanour varies from
person to person. Generalisations about behaviour are unhelpful in determining the
witness of truth.

3. Ability to recount the articulate vs the inarticulate
This may be seen as an aspect of demeanour but in terms of communication and
information flow it is probably in a category of its own. Demeanour goes to the
assessment of the person communicating the information. The ability to recount
goes to the act of communication and has an impact upon the assessment and the
quality of the information that is being given. An eloquent and verbally skilled
witness one who is comfortable with the subtleties and nuance of language is
going to be able to tell the story more convincingly that the person with a limited
vocabulary, unskilled in the nuance of language. Such a person is easy game for the
articulate 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 below
that 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 in
being 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 impairs
the auditors comprehension of what is being said. Subconsciously the auditor may
attribute to this witnesss story less weight, simply because she had difficulty fully
understanding what was being said. In such a case any empathy that might naturally
occur between speaker and auditor is reduced, diminished or lost completely.
Further problems may arise in terms of tone of voice, accent, speech impediments
and 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. This
necessarily means that the story is delivered in a stuttering fashion with an absence
of nuance, and the true meaning that the speaker seeks to convey may be lost as a
result 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 of
demeanour 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 (last
accessed 20 June 2014.

27

who does not have English as a first language but for people who do and are
participating in a trial where the accused does not. As a result of the New Zealand
Supreme Court decision in Abdula v R
51
every word must be translated line by line
for the benefit of the accused. This heightens the stuttering way in which the story
is being told, interferes with the sequentiality of the account and impairs or reduces
concentration and comprehension. In its quest for ensuring that the accused
comprehends what is being said, the Supreme Court has thrown the importance of
communicating information between witness and fact-finder to the wind and has
done potential damage to the proper assessment of the information that is being
conveyed, not only by the witness who requires a translator, but by all the
witnesses who do not, but whose evidence is effectively being laboriously
translated 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 who
suffers an intellectual disability that affects recall or articulation is going to have
difficulties telling a story let along a convincing one. And one has to be careful to
ensure that empathy with a witness does not overflow into sympathy which clouds
objectivity.

7. The Court Environment
Finally there is the intimidating nature of the Court environment a recognised
problem that can result in nervousness and inhibition in all but the most
experienced witnesses (who are usually Police officers). Once again the Court
environment, the unusual garb worn by the participants, the ritualised
atmosphere are all impediments to proper and coherent story telling. Most
witnesses manage, but the whole focus for the witness should be on the story that
is being told rather than being distracted by nervousness and inhibition. The
problem is that rather than becoming a forum for ascertaining fact, the Court itself
inhibits the communication of information upon which the fact finding depends.

Some of these problems are recognised by allowing evidence to be given in an alternative
way pursuant to s. 103 of the Evidence Act 2006.
Some Solutions using Spatial and Temporal Technologies
Some of the problems that I have enumerated can be addressed or mitigated using spatial
or 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 in
Court. 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 the
problem 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
28

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

As an adjunct to the discussion of translation where possible and in my view it
should be a rule a witness statement from a person who speaks other than English
as a first language should be taken and the interview conducted in his or her first
language. An interpretation transcript can later be provided. The possibility of
inaccuracy arising from a translated police interview even when recorded on video
can lead to problems where questions or answers are mistranslated and the
interview pursues a different direction as a result of inaccurate translation. This has
happened in more than one trial over which I have presided.

2. Articulation of Evidence in a Threatening or Unfamiliar Environment
This omnibus solution addresses items 3,4,6 and 7 of the oral evidence problems
mentioned 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 these
problems. The most obvious aspect of the trial that might aggravate these problems
and create impediments to the communication of information is the Court
environment itself.

A solution may be found in the employment of both temporal and spatial
technologies. In New Zealand the provisions of section 103 et seq of the Evidence
Act 2006 provide a possible solution. Section 103 allows for directions to be given as
to 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 of
the 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 some
other 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 involve
some 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 CRPA
provides that nothing in the CRPA affects the ability of the Judge to make an order

52
See The History of Simultaneous Interpretation United Nations
http://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 situ 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.
29

under s. 103(1) of the Evidence Act that is to make an order that evidence be given
in an alternative way. Thus the provisions of the two Acts, as they affect evidence
giving, run concurrently, although the tests in the CRPA are significantly less onerous
than 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 a
temporal form of technology employing a preservational evidence retention system.
Once video tapes were used. DVDs are now the preferred preservational medium
although 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 enable
the Judge, the jury (if any), and any lawyers to see and hear the witness
giving evidence, in accordance with any regulations made under
section 201:

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

(c) in a criminal proceeding, the defendant is able to see and hear the
witness, 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 is
suggested that this test should be a universal one rather than maintain the archaic
requirement for physical presence. I use the word archaic because improved and
modern communications technologies render trial processes so.
54


The grounds for making an order that evidence be given in an alternative way are
primarily for the protection of the vulnerable witness. The grounds recognise that
vulnerability 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 terms
of that order.
(2)If a video record of the witnesss evidence is to be shown at the hearing of the proceeding, the Judge
must 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.


30

Section 103(3) provides as follows:
A direction under subsection (1) that a witness is to give evidence in an alternative
way, may be made on the grounds of
(a) the age or maturity of the witness:
(b) the physical, intellectual, psychological, or psychiatric impairment of the
witness:
(c) the trauma suffered by the witness:
(d) the witnesss fear of intimidation:
(e) the linguistic or cultural background or religious beliefs of the witness:
(f) the nature of the proceeding:
(g) the nature of the evidence that the witness is expected to give:
(h) the relationship of the witness to any party to the proceeding:
(i) the absence or likely absence of the witness from New Zealand:
(j) any other ground likely to promote the purpose of the Act.

Therefore, on the face of it, some of the problems that I have identified could be mitigated
by a robust use of the grounds for evidence to be taken in an alternative way, and it is to be
remembered that an order may be made on the Judges own motion.

However, there are other criteria that must be taken into account. The Judge must have
regard to the need to ensure the fairness of the proceedings and, in the case of the criminal
trial, that there is a fair trial. In addition the Judge must take into account the views of the
witness, the need to minimise stress and, in the case of a criminal proceeding, the need to
promote the recovery of the complainant, together with any other factor relevant to the
just determination of the proceeding.

It is quite clear that many of the problems surrounding orality that I have identified may be
addressed by the use of temporal and spatial technologies by the use of a technologically
focussed use of sections 103 and 105 of the Evidence Act 2006.

Occasionally there are valid objections to the utilisation of technological solutions. The case
of R v Sadlier tried to bring together spatial and temporal evidence taking and giving
technologies by using a pre-recording of evidence in chief together with a pre-recording of
cross-examination. The whole recording would be played to the jury and would comprise
the entire evidence of the witness. The Court of Appeal made a number of general
comments about this process.
55
Effectively the defence would be showings its hand
before the trial had started. In addition the accused was entitled to hear the prosecution
opening and theory of the case before taking any step. Disclosure was often delayed which
meant that the approach of the accused may be predicated upon insufficient information. In
addition counsel would be required to prepare twice for trial involving extra costs. Other
trials may be delayed while resources were being used for pre-recording, and there was an
inability to tailor the cross-examination to the trial dynamic or for the jury.

55
M v R [2011] NZCA 303
31

Presentational Technologies
Technology 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 hard
copy photograph that he or she is holding, matters of interest in the photo. Problems of
distance between jurors and witness can create communication problems, and the marking
of the photo with a pen may not be the most accurate way of preserving a reference to a
matter of interest.
The projection of photos onto screens resolves the problem of scale. A fifty or sixty inch
High Definition screen can project an illustration that displays more detail than is apparent
on 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 be
printed 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 effectively
achieved using digital technologies. In addition to the large screen, jurors could be provided
with their own screens in the jury box or, alternative, a tablet computer linked to a wireless
system to which the illustrative exhibits are transmitted. In addition software tools could be
provided so that jurors could make their own annotations to the exhibit.
Presentational technologies can be used for any of the illustrative or demonstrative
requirements during the course of a trial. In addition, use can be made of the wide range of
publicly and freely available sources of information that can properly inform the jury of the
context of events. Utilities such as Google Maps, Google Earth and Street View can be used
as scene setting utilities and that may avoid the necessity of a scene visit. Street layouts, the
intersection where the accident took place, the relative location of buildings or commercial
premises to the location of the scene of the crime may all be presented using publicly
available resources for illustrative purposes. It is acknowledged that these sources of
information are primarily illustrative and may not depict the scene at the moment at which
events took place. However, as long as there is reasonable contemporaneity with the events
in 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 contained
in the ubiquitous Eastlight folder. However, there has been progress in the use of digital
technologies which have been employed in document presentation in the course of a
hearing or a trial.
In addition there are occasions where documents have been created for the purposes of a
trial in particular transcripts of intercepted conversations or streams of text messages or
emails that are similarly voluminous. While the presentation of these items of evidence may
be enhanced by the use of digital technologies, their use by the jury may be compromised
by the volumes of paper through which the jury must sift to locate and analyse aspects of
the evidence.
32

The jury should be presented with documentary evidence in digital format so that they can
properly search for and locate matters of evidence or information that may assist in their
determination. Using document analytics tools such as concept searching or e-mail
threading as well as blunt force keyword searching, the jury can more efficiently go about
their task of analysing the information that is before them. Using analytical tools the jury
may, for example, identify common threads in recorded conversations, frequently utilised
modes of expression in text messages and the like. The tolls that are employed in document
isolation and analysis in e-discovery can be made available to the jury to assist in the
analysis 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. For
much of that time this could only be done by unwrapping the bodies, giving archaeologists
and specialists one opportunity to carry out their investigations before the integrity of the
mummy was destroyed forever. A similar situation occurs when the forensic pathologist
applies the scalpel to the body of the deceased to ascertain cause of death. The first
investigation compromises the integrity of the evidence, thus complicating subsequent
examinations. Would it be possible to carry out the forensic examination without interfering
with the integrity of the evidence, thus making subsequent reviews possible.
The investigation of mummies provides an answer. The advent of sophisticated scientific
imaging techniques since the 1980s has virtually eliminated the need to disturb their
coverings. The non-invasive investigation of mummies, which was previously conducted
using X-Rays has been superseded by high resolution 3D imaging techniques, namely
computerized 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 one
direction, the source rotates rapidly around the body as it passes through the scanner. A
detector receives the Xrays and a computer is used to create very detailed images of the
inside of the body. The images (or tomograms) are recorded as thousands of two-
dimensional slices that can be combines using graphic software so-called volume
rendering to produce 3D images of the body inside the wrappings.
The technology allows for the separation of layers so-called segmentation and peel away
structures in order to observe what is beneath each one. This allows for the virtual removal
of bandages, skin, muscles, grave goods within the wrapping, organs and skeleton. Items
such 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 has
demonstrated this technology.
56
Visitors to the exhibition are able to virtually unwrap eight
mummies on display as well as study 3D printed copies of parts of the skeleton and grave
goods.
The evidential advantages of this technology flowing from this must be obvious, not only for
forensic pathology but for other forms of evidence amenable to CAT scanning which
maintains evidential integrity.

56
John H. Taylor and Daniel Antoine Ancient Lives, New Discoveries Eight Mummies, Eight Stories (British
Museum Press, London 2014)
33

3D Use
The potential for presentational technologies is expanding as a result of the development of
3D modelling. The Future Crime Scene Project of the New Zealand ESR provides juries with
detailed 3D virtual tours of crime scenes. The data that forms the basis of the modelling is
collected as the crime scene is investigated including the location of items of interest such
as blood spatter.
57
The use of such technology has the advantage of presenting an
illustrative, realistic, contemporaneous view of the crime scene uncluttered by floor plans or
without the necessity of having to explain the position of a photographer or the like. The
walk-through nature of the technology, and the capability for 360 degree views allows the
viewer to be virtually present in a way that would be difficult to capture orally or by
conventional means.
3D Projection
The use of 3D projection may mean that a sensitive piece of real evidence need not be
handled by the jury, but may be projected on a screen and viewed using 3D glasses,
obviating the need for the exhibit to be handed around the jury box. In a demonstration
which I attended at Courts Technology Conference 2013 in Baltimore, Maryland a brick
which had fragments of hair and skin adhering to it was presented using 3D technology. This
was done because the fragments of hair and skin could easily be dislodged, compromising
the value and integrity of the evidence. The exhibit could be rotated, so that it could be
viewed from all angles. Professor Fred Lederer outlined the experiment as follows:
With the help of WolfVision and Panasonic, CLCT demonstrated the first known
courtroom use of 3D evidence at the 2013 Court Technology Conference, showing a
bat and jagged brick in 3D in a simulated road rage trial. (Yes, we have reached the
point at which the judge's instructions include, "Jurors should now put on their 3D
glasses.") It's unclear whether 3D evidence should be admissible or, if so, should
await 3D monitors without glasses.
58

Professor Lederers caution is not unexpected, but as 3D technology develops it is very likely
that this option for evidence presentation will have to be considered. There seems to be
little reason why such a means of evidence should be excluded. The real evidence the
brick is available and present in the courtroom. It has to be for the 3D presentation to take
place. It is not as though the item is a reconstruction.
3D Printing
Having said that, 3D technology does allow for the reconstruction of an item of real
evidence by way of 3D printing. The use of 3D printing for investigative or court purposes is
still relatively new. This may be in part because of a perception of a complex technology,
cost, or simply a lack of understanding of what can be done with 3D printing. Its a wonder

57
ESR Media Release, 18 December 2012 ESR working with Academy Award winning 3D artist on new CSI
technology trials http://www.esr.cri.nz/news/esrmediareleases/Pages/Crimescenetechnology.aspx (last
accessed 23 June 2014); ESR Annual Report 2013 esp at p.17 and 20
http://www.esr.cri.nz/SiteCollectionDocuments/ESR/Corporate/PDF/ESR_ANNUAL_Report2013_web.pdf (last
accessed 23 June 2014)

58
Fred Lederer Some Thoughts on Technology and the Practice of Law (2014) The Bencher (a bi-monthly
publication of the American Inns of Court) http://home.innsofcourt.org/for-members/current-members/the-
bencher/recent-bencher-articles/januaryfebruary-2014/some-thoughts-on-technology-and-the-practice-of-
law.aspx (last accessed 23 June 2014)
34

why more investigators, lawyers, and expert witnesses havent seen the benefit of 3D
printing for use in court.
For anyone who has been following the trends in 3D printing, it comes as no surprise that
there has been significant growth in this area in the past several years. New companies have
formed providing small, at-home 3D printers for ready-made parts while larger and more
professional printers allow for a variety of materials to be used with colour, tight tolerances,
and improved surface finishes. Materials and technologies range from powder based
materials, liquid resins, metals, and ceramics. Traditionally, these 3D printing systems have
been used by engineers to create new or replacement parts while hobbyists and artists have
the ability to create ready-made pieces to their own specifications. However, in the case of
the criminal investigator or forensic scientist, only a few have actually used this technology
in court.
Perhaps the greatest reason for the 3D printing boom has to do with the availability of 3D
digitizing systems such as laser scanners, structured light scanners, photogrammetry, and
similar technologies. The cost of hardware has become affordable and the ease of use of
photogrammetry software has made these technologies available to the average consumer.
A quality laser scanning system for smaller parts can be purchased for less than a few
thousand dollars and in the case of photogrammetry, there are several low cost and even
freely available programs and services offered to create highly detailed 3D models of
everyday objects.
The first step to creating a 3D printed object is to be able to digitize the object into a 3D
model. Although terrestrial laser scanners have seen some increased use by law
enforcement agencies, close range scanners that accurately record smaller pieces of
evidence like skulls, bones, and shoes are not commonly owned or used by police
departments. This is one reason why 3D printing for forensic use is not such a common
practice. Fortunately, a local service provider with equipment capable of digitizing a
particular piece of evidence should not be too far away.
The second step after an object has been documented in 3D is to ensure that the model is
made into a continuous volume without any missing pieces. 3D printing is a process of
combining materials, one layer at a time, to make objects from 3D model data. This is
opposite to a subtractive manufacturing method such as machining. The benefit is that 3D
printing allows for very complex parts to be made that would be impossible with other
manufacturing methods. However, much like stacking layers of blocks on top of each other,
there must be at least a partial block underneath to support the next layer on top.
Therefore, the 3D model usually requires some preparation to fill any gaps and solidify the
object into a water tight mesh.
The final step is the actual printing process itself. Similar to a regular inkjet printer, there are
different quality settings that can be chosen for most 3D printers that define the surface
finish and step increment of the part. Depending on the shape and size of the part, print
times can range from just a few minutes to several hours for more complex parts.
35

3D printing can be used for footprint which previously have been modelled using plaster
casts. Fingerprints can be captured and rendered in 3D. Presently they are captured by the
use of powder and tape.
While in court, a fingerprint examiner could use a large replica of a suspects fingerprint to
make identifications and comparisons by colour coding certain ridge features (such as
islands, crossovers, and bifurcations) and matching them to a found print at a crime scene.
Jurors benefit by being able to easily visualize the 3D replica and they have the benefit of
haptic perception.
Fingerprints are a good example of where we take something small and create it at a much
larger scale to bring out specific details which would normally not be easily visible by the
naked eye. Fingerprint examiners in training benefit similarly from having the ability to
easily visualize and feel what an enlarged 3D replica of a persons finger looks like before
making a flat print comparison.
Other forensic uses of 3D printing are extensive and are open to creativity. Some of these
might include:
Printing a scale model of the first floor in a home where a crime was committed.
Recreating a physical copy of a weapon found at a crime scene.
Displaying bullet trajectories through a 3D scanned article of clothing.
Creating a model of a suspects dentition and showing how well a bite mark aligns.
Printing a scaled model of a collapsed building due to a bombing.
Creating test pieces of a piece of evidence that might be used in an experiment.

Although there are few cases where 3D printing has been adopted for investigative or court
purposes, the ability to physically recreate a piece of evidence is an interesting approach.
The range of objects can be as small as a fingerprint or can be an entire crime scene that is
scaled down to just a few feet. As investigators and scientists start to see the benefit of
replicating evidence, they will need to begin looking at digitizing technologies such as close
range laser scanners, structured light scanners, and photogrammetry. Once these
technologies have been adopted and more evidence is captured in 3D, there will very likely
be many more cases where 3D printing will be applied.
59

There are continually developing methods of evidence presentation. Although the use of a
monitor will always require some form of interface such as a projector, laptops are being
replaced with tablet-style devices. Professor Lederer observes that lawyers and judges who

59
Eugence Liscio Forensic Uses of 3D Printing Forensic Magazine 4 June 2013
http://www.forensicmag.com/articles/2013/06/forensic-uses-3d-printing (last accessed 23 June 2014) For
recent legal scholarship on 3D printing and its uses see Nora Freeman Engstrom 3-D Printing and Product
Liability: Identifying the Obstacles, 162 U. Pa. L. Rev. Online 35 (2013); Peter Jensen-Haxel L.C. Ebert, M.J. Thali
R. Ross 3D Printers, Obsolete Firearm Supply Controls, and the Right to Build Self-Defense Weapons Under
Heller, 42 Golden Gate U.L. Rev. 447 (2012); Getting in Touch--3D Printing in Forensic Imaging, Forensic Sci.
Int'l 2011 Sep 10; 211(1-3) (all last accessed 23 June 2014)
36

were uncomfortable with computers in the courtroom have far fewer concerns about iPads
in particular. We hear constantly about lawyer interest in jury selection, evidence
presentation, and even jury use of iPads. That iPads in particular were not designed for easy
secure courtroom use matters not; everyone wants in on the iPad revolution. Evidence
presentation via iPad seems to be increasingly popular, notwithstanding security and display
connection issues.
60

Other Suggestions
The discussion so far has focussed upon issues surrounding the information that a factfinder
needs to reach a decision evidence. However, there are other ways in which technology
can be employed in the trial process. Technology can also be used for by lawyers for
presenting arguments, openings or closings to the jury using presentation software or in
cases where the case is document heavy. The Courts in Queensland have developed
processes for Electronic Trials in cases where the number of documents exceed 500.
61
In
New Zealand the High Court Electronic Bundle Protocol is recommended in cases involving a
similar volume of documents. Andrew Sinclair has set out some of the advantages of the E-
Trial process
62
:
- Each instructing solicitor and Counsel can have their own tablet or computer
instantaneously accessing other documents within the database.
- Parties can keyword search documents
- Transcripts can be added to the database and are also keyword searchable.
- With appropriate security in the form of password protected access to their file, the
parties may login to the server from home or Chambers and thus have access to all
the material wherever they are
- Screens can be placed in the public gallery so public and media can also follow cross
examination on documents.
- All this material remains available to the judge in court, in chambers and at home
with the purpose of writing the judgement, again all indexed and searchable
- If there is an appeal to the e-trial becomes an e-appeal with minimal document
management issues.

Greater Use of CCTV and Surveillance Systems
Personal drones and Google Glass, the forehead-worn monitor, computer, and
recording device, could give us even more intimate video of nearly every facet of
human life. Setting aside the potential impact on whatever privacy we have left, it
may be that nearly every trial will include, "Let's go to the video." Although the
digital evidence may be brought to the courtroom on CDs, jump drives, or lawyers'
computers, it may also be retrieved during trial from the "cloud" as the Center for
Legal and Court Technology (CLCT), at William & Mary Law School did in its recent
experimental (simulated) legislative hearings. As for cloud computing, we as lawyers
will have to address whether we know where our privileged information is, whether

60
Fred Lederer Some Thoughts on Technology and the Practice of Law above n. 31
61
http://www.courts.qld.gov.au/information-for-lawyers/electronic-trials-etrials (last accessed 23 June 2014)
62
Andrew Sinclair Electronic Practice Management: The tools for managing the preparation and presentation
of a trial brief (Copy on file with the author)
37

it's secure from prying eyes, and even whether we can count on it to survive natural,
technical, or business failure.
63

It is an axiom not necessarily an absolute one in these days of Photoshop and digital
content manipulation that the camera does not lie. But certainly the objective record that
a camera or a CCTV recording can provide is a far superior form of information that the
human eye and the ability (or inability) to articulate what transpired at a scene.
The value of CCTV has been expressed in the following way:
Closed-circuit television (CCTV) can provide compelling evidence and investigators
should consider it in every investigation. Although CCTV is primarily used for
corroborating what is already known or suspected in volume crime incidents, it is a
powerful tool for triggering further investigative opportunities. It can be used, for
example, to show the nature and severity of offences and to identify suspects and
witnesses, inconsistencies in accounts and forensic or scientific opportunities, such
as the location of discarded property or vehicles, especially where it may seem that
an investigation has come to a standstill.
The value of images cannot be overstated. They present evidence in a unique way
and allow those involved with the criminal justice system to visualise the crimes in
question. When a case goes to Court reinforced by good CCTV material, the
prosecution is more likely to achieve a conviction
64

However, concerns about the use of CCTV evidence were expressed by Professor Gary
Edmond from the University of New South Wales in 2009.
65
His concern lay in the uncritical
acceptance by courts of this type of evidence and the lack of a reliability standard. His main
concern related to the use of CCTV footage in the comparison of such images to a suspect.
His concerns were that the procedures for image comparison had not been validated.
Yet the presence of CCTV in modern communities has become pervasive.as this diagram
demonstrates:

63
Fred Lederer Some Thoughts on Technology and the Practice of Law above n. 31.
64
National Policing Improvement Agency Practice Advice on the Use of CCTV in Criminal Investigations
(National Policing Improvement Agency, London 2011) p. 7.
65
Gary Edmond, Katherine Biber, Richard Kemp, and Glenn Porter, Laws Looking Glass: Expert Identification
Evidence Derived from Photographic and Video Images (2009) 20 Current Issues in Criminal Justice 337

38


Facial Recognition Software
What follows from the prevalence and pervasiveness of CCTV cameras (see above diagram)
the next issue that arises is the use of facial recognition software as an identification tool.
This is not an entirely novel or revolutionary concept, although the software itself has been
the subject of comment. In 2009 Edmonds et al stated Notwithstanding its routine use in
the criminal courts of Australia, New Zealand and England, there is, curiously enough, no
empirical evidence supporting the validity or reliability of facial mapping techniques."
66


If that is still the case, the new technology would, of course, have to be scrutinised for
reliability although in New Zealand some care would have to be taken as to manner in which
such evidence was challenged. The results of the use of facial recognition software would
qualify as evidence derived from a machine, device or technical process. There is a
presumption of reliability on the particular occasion in question that is that the machine
device or technical process did what the tendering party asserts it to have done, once the
party tendering establishes what the machine, device or technical process ordinarily does.
The presumption subsists in the absence of evidence to the contrary.

Thus, counsel for the party tendering would have to establish what the facial recognition
software ordinarily does to give rise to the presumption that the software performed
properly on a particular occasion.
67
Defence counsel has an opportunity to challenge at this
point and should attack on general reliability principles. Expert evidence would have to be
called. The problem is that with the way in which this technology has developed, it may be
difficult to mount a successful reliability challenge. The second line of challenge available
is to adduce evidence that on the particular occasion in question, the machine, device or
technical process was not operating properly. Assuming that the general reliability

66
Ibid. p. 351.
67
See Scott v Otago Regional Council (HC Dunedin CRI 2008-412-1720 3 November 2008 Heath J. On this topic
generally see David Harvey internet.law.nz 3
rd
ed (LexisNexis, Wellington 2011) p. 476 et seq and esp at 480
486.
39

challenge has been unsuccessful possible avenue of challenge may lie in the quality of the
image or data to which the facial recognition software is being applied.
68

Technological Competence as a Litigation Requirement
One matter that will concern lawyers is the issue of technological competence. Although
this has not yet hit our shores, in the United States the American Bar Association passed a
resolution in August 2012 requiring lawyers to keep pace with relevant technology. This not
only relates to the use of technology in the Courtroom but in practice generally. Lawyers are
required to keep pace with relevant technology in order to comply with their obligation to
competently represent clients. Although the resolution has largely flown under the radar,
the change is significant because the ABA Model Rules of Professional Conduct (Model
Rules) serve as a guide for the ethical rules governing lawyers in most states. Failure to
comply with state ethics rules can lead to various penalties for lawyers, including temporary
or permanent disbarment. That means in-house counsel need to understand the level of
technological proficiency required to competently represent clients today and in the future.
Comment 8 to Rule 1.1 states:
To maintain the requisite knowledge and skill, a lawyer should keep abreast of
changes in the law and its practice, including the benefits and risks associated with
relevant technology, engage in continuing study and education and comply with all
continuing legal education requirements to which the lawyer is subject.
Technological competency could well be a matter that reaches our shores before long.
Conclusion
The criminal jury trial, like all aspects of legal practice, is an exercise in information
exchange. The objective is to come to a conclusion by determining the facts that are
available and whether these facts fit within certain requirements defined by law. The
consequences of that decision may be far reaching and often involve the life or liberty of the
subject, as well as having a significant impact upon that persons immediate and wider
family. In such circumstances, the conclusions that are reached should be based on the best
quality of information available. Technology can assist in that objective. Quaestio cadit







68
Facial recognition or facial mapping technology has had a difficult passage in Australia - see Edmond et al
Laws Looking Glass above n.63 at p346 - 350