Paperless jury trial - perhaps not yet

By Craig Ruane

The article by Nathan Speir ("Paperless jury trial", LawTalk 821, 21 June 2013) about the paperless jury trial came at a time when I was preparing for a murder trial. I was intrigued by the article, and it gave me some confidence to go some way down the track.

By way of background, my trial involved the murder of a Christchurch woman some five or six years ago. To that extent I suspect that the Police processes in dealing with documents electronically have moved on since the case began.

The initial Police enquiries were extensive, to say the least. Large numbers of witnesses were interviewed. Many of them were habitués of what passes for an underworld in Christchurch, and were less than co-operative.

At a relatively early stage Police attention focused on a local gang but, as is so often the case, the members of the gang and their associates did not think that they owed a civic duty to assist the Police. The end result was that before the accused was arrested the Police generated thousands of documents and took hundreds of photographs. Much of the material was irrelevant and could safely be ignored.

Following the accused’s arrest, the Police began to make disclosure. It was at this point that it became clear the trial was going to be a very substantial one, and that some electronic assistance would be helpful.

Initial disclosure was made by a variety of means. Some documents, such as photographs, were delivered in hard copy. Many documents were delivered electronically, but a significant proportion of those were simply scanned copies of handwritten jobsheets or the like. Many of the documents were in PDF format, having been converted from other file formats, generally DOCX. In the end I received something in the order of 20,000 documents of one form or another, although hundreds, and possibly thousands, were duplicates.

Although it was possible to open and to view each individual electronic document, the first problem I struck was an inability to search the content of the documents. Those documents that were simply scanned were not indexed in any meaningful way, and there was no meta data associated with them.

All I received as counsel was a CD, accompanied by a schedule which identified a document number and a very brief description (if indeed there was a description) of the document. There was nothing in the material I was supplied with which provided any sort of easy means of indexing the documents.

Initially I used a well-known document indexing programme, one which was in fact also used by the Police. This proved next to useless. It was obviously incapable of indexing those documents which had simply been scanned.

I found it difficult, if not impossible, to use this particular piece of software to search those documents which had been created in DOCX format. Many of the PDF documents had been opened, redacted, and then improperly saved. The indexing software refused to index these particular documents and various error messages were produced.

Faced with the prospect of having to individually open each document and to manually index it in some way, I initially made an application under the High Cost Case regime to the Ministry of Justice’s Legal Aid Service.

I estimated that to deal with each document would take something between 30 seconds and 1 minute. I multiplied this by the number of documents I had, and asked for that amount of time by way of preparation. My application was rejected after being considered by a “specialist advisor”. Presumably the specialist advisor did not think it was necessary to view each individual document in a homicide trial to clarify its relevance, or perhaps thought I should be doing it much more quickly than estimated.

In order to be able to index the PDF files which had been redacted by the Police, and after seeking some advice on a LinkedIn group, I bought a piece of indexing software called “Archivarius 3000”. Given that originated from somewhere east of what was the Iron Curtain I was a little hesitant about entrusting my credit card details to the website, but all seems to have gone well. I am not yet funding an extravagant lifestyle in exotic destinations, and I have not been flooded with advertisements for male enhancement products or the opportunity to win millions of dollars in lotteries.

Although I suspect that there are a number of other similar products this seems to do all that is required of it. It was relatively cheap (less than $100), relatively easy to use, and has the ability to deal with quite complex searches. Like the programme referred to by Mr Speir, Archivarius allows annotation of PDF documents and some degree of cross referencing by hyperlink.

I spent some considerable time organising the documents I received by way of disclosure into a sensible directory structure. Strictly speaking, with good searching software, it would probably not be necessary to do this but it made it much easier to find groups of documents. In particular I put all briefs of evidence of those witnesses who were to be called at trial in a folder and images were similarly organised in a series of logically constructed folders.

Fortunately the Police, when sending out what I thought was the last set of briefs of evidence, had helpfully put the file number of each brief on the document. This meant that it was easy to work backwards from the hard copy brief to the electronic document, and to associated documents. Unfortunately, at the very last minute, the Crown produced another updated set of briefs which did not have the reference number on the document. Given that quite a number of the witnesses gave evidence several times, it made it very hard to flick up the particular brief the witness was being led from at short notice.

Unlike Mr Speir, I did not go to the expense of buying a new laptop but I am thinking seriously about doing so. The fact that I was legally aided was one reason for this decision. The real issue was that Microsoft does not make it easy to transfer your setup from one computer to another. If I am going to buy another computer I want to have something which looks and feels pretty much the same without having to reinstall every programme I have ever bought. To get a new computer, and to have to go through the process of learning to use it, was just going to be too hard in the time available.

As this was a new process, I adopted the belt and braces approach of having all of the important documents, (briefs of evidence, supporting statements and jobsheets) in an array of Eastlight binders in court, with electronic copies of those and all the other documents, on the laptop. That way, if things went horribly wrong, at least I had the backup of the hard copy.

I was not prepared to go so far as Mr Speir and to abandon my paper notes entirely, particularly in closing, but I would be prepared to do next time with a touch screen. The ability to cut and paste from the transcript was very useful in closing (I was being emailed the transcript each evening, as well as receiving a hard copy in court during the day).

It is not possible to go entirely paperless. Particularly when putting documents to a witness, the hard copy must be shown, and the jury also needs to have access to the document. In the absence of a fully electronic court there is going to be a lot of paper floating around.

Lessons learned

I am a reasonably proficient computer user, although do not pretend to be a touch typist. I am of a generation that spans the introduction of the PC, and I first learnt to programme using CANTRAN and BASIC. The first portable computer I used was a device called FACE, which only took eight beefy soldiers to lift into the back of a 3-ton Bedford truck.

The things to be wary of, in going electronic, include:

  • · ensuring that all documents are on the computer in a form which can be searched;
  • · ensuring that the search index is up to date if your searching programme does not index “on the fly”;
  • · ensuring that your computer is backed up at least daily;
  • · ensuring that there is a reliable power supply in court and that you have access, by one means or another, to the internet. In my case I did not use my phone as a wireless hotspot, but it is an option. A better option would be for the Ministry of Justice, perhaps in conjunction with the New Zealand Law Society, to provide wireless access to counsel in court;
  • · not getting bogged down in the technicalities of data entry and data manipulation. It is what the witness says and does in the witness box which will be noticed by the jury, not what you have up on your screen; and
  • · allowing plenty of time, well before trial, to organise the material you get from the Police/Crown so that if all else fails you can work your way through your directory structure and find what you need.

I do not intend to enter into a debate about the benefits of Windows v Apple, other than to say whichever system you choose, make sure you are familiar with the software and its foibles. There is probably more software available for Windows and the court, Crown, and Police seem to use Windows based systems.

The merits of the system were largely as Mr Speir has said:

  • · being able to access all documents from one source, quickly;
  • · not having to transport large quantities of paper each day to and from chambers;
  • · the ability to search large documents, and large numbers of documents, for words and phrases. On this point there needs to be a note of caution. The searching software is only as good as the data it is searching. Searching for “Smith” will probably not pick up “Smyth” “Smiff” or any of the other permutations a careless typing finger might generate; and
  • · the ability to annotate documents on the fly, and to review the annotations later. The virtual highlighter is a great tool, particularly if you have access to a colour printer, and the ability to cross reference and hyperlink documents is helpful.

As to hardware I think the comments I would make are:

  • · A touch screen would be invaluable.
  • · Size matters. A large detachable touch screen is going to be more useful than a small touch screen.
  • · Practice makes perfect. The middle of a long complex trial is not the time or place to learn how to use the software.

There is a time burden involved in setting up the system, loading the data, indexing it, and generally fiddling about. The time burden may not be worth it for a half day fixture. On the other hand, if the disclosure material has already been provided electronically, a short fixture may well be an ideal opportunity to learn, knowing that if things go horribly wrong the hard copy folder is tucked away in your briefcase.

These are no doubt all issues that civil litigators have come to grips with in large scale civil trials. Criminal lawyers tend to be a little more old fashioned.

As a final thought, if you are going to go down the electronic route, don’t do it half-heartedly. Invest the time and money in hardware, software, and preparation and you may well find that you can spend more time focused on the issues and less time shuffling folders on your desk.

 

This article was first published in LawTalk 844, 20 June 2014, page 32.


Craig Ruane has practised in Christchurch since graduating from Canterbury University in 1978. He spent several years as a litigation partner in a large Christchurch firm, where his emphasis was criminal and civil advocacy. He joined the Crown Solicitor’s office as an associate and senior prosecutor in 1998. After nine years as prosecutor, which included time in East Timor prosecuting war crimes and crimes against humanity, he joined Riverlands Chambers as a barrister in 2007.