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59 ReferencesDigital Evidence in the Jury Room: The Impact of Mobile Technology on the Jury
Abstract
Wireless technology and mobile devices are transforming the way courts administer justice, with the increasing use of smartphones, iPads and other tablets by practitioners, judges and juries. In the jury room, mobile devices have the potential to simplify the provision and use of information and facilitate more efficient deliberations and overall decision-making. But before such technology can become commonplace in the jury room, courts would benefit from empirical evidence of the impact — positive and/or negative — of providing it to jurors both in terms of efficiency and preserving the fundamental prerequisites of the right of the accused to a fair trial. This article presents the preliminary findings of a project undertaken to examine the impact of tablets on the deliberation process and jury decisions.
Full-text (PDF)
Available from: Karen Gelb, Dec 21, 2015
Digital Evidence in the Jury Room:
The Impact of Mobile Technology on
the Jury
Laura W McDonald,* David Tait,† Karen Gelb,‡ Meredith Rossner§ and
Blake M McKimmie**
Abstract
Wireless technology and mobile devices are transforming the way courts administer justice,
with the increasing use of smartphones, iPads and other tablets by practitioners, judges and
juries. In the jury room, mobile devices have the potential to simplify the provision and use
of information and facilitate more efficient deliberations and overall decision-making. But
before such technology can become commonplace in the jury room, courts would benefit
from empirical evidence of the impact — positive and/or negative — of providing it to
jurors both in terms of efficiency and preserving the fundamental prerequisites of the right
of the accused to a fair trial. This article presents the preliminary findings of a project
undertaken to examine the impact of tablets on the deliberation process and jury decisions.
Keywords: jurors – jury room – digital evidence – tablets – technology
Introduction
It is now commonplace in court to see a range of visual technologies at work in the trial
process (Lederer 2004; Feigenson and Spiesel 2009). Remote video technologies are used to
bring live witnesses, defendants and, sometimes, judges into the courtroom (Horan and Maine
2014; Dumoulin and Licoppe 2015). Recorded video evidence is also used and can include
CCTV footage, body-worn police camera footage, forensic animations, or crimes filmed by
witnesses from their mobile phone. This ‘visual turn’ in the law (Feigenson and Speisel 2009)
* Research Officer, Digital Humanities Research Group, Western Sydney University, Locked Bag 1797, Penrith
NSW 2751, Australia. Email: laura.mcdonald@westernsydney.edu.au.
† Professor of Justice Research, Digital Humanities Research Group, Western Sydney University, Locked
Bag 1797, Penrith NSW 2751, Australia. Email: d.tait@westernsydney.edu.au.
‡ Research Fellow, Digital Humanities Research Group, Western Sydney University, Locked Bag 1 797, Penrith
NSW 2751, Australia. Email: k.gelb@westernsydney.edu.au.
§ Assistant Professor in Criminology, Law Department, London School of Economics, Houghton Street,
London WC2A 2AE, UK. Email: m.rossner@lse.ac.uk.
** Associate Professor, School of Psychology, The University of Queensland, Sir Fred Schonell Drive, St Lucia
Qld 4072, Australia. Email: b.mckimmie@psy.uq.edu.au.
180 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
has led to a burgeoning jurisprudence of the image (Feigenson 2014), forcing consideration
of the meaning of images in court and, in particular, their impacts on juries. As a result, there
is now a significant body of work on juror perceptions of visual evidence and remote
testimony (Bright and Goodman-Delahunty 2006; Feigenson 2010; Rowden et al 2013).
In addition to the increasingly visual character of evidence, the mode of presentation has
also changed. Laptops and tablets are now frequently used in Australian courts. Commercially
available apps for the presentation of evidence, such as Exhibit A, TrialPad and Evidence,
allow prosecutors and defence lawyers to use their tablets to ‘push’ images to screens located
in the courtroom. This includes fixed screens that display evidence to the jury, witnesses or
public. Juries for the most part view evidence on either large screens mounted on courtroom
walls or smaller ones located in the jury box. Some of this evidence may also be given to
jurors to take with them into the jury room, either on paper (typically for written documents,
such as transcripts or phone records) or, more frequently, on a DVD (for video evidence). In
some jurisdictions, tablets have been introduced into the deliberation room: such is the case
with some fraud trials in England and Wales (Nick Cowdery, personal communication).
Indeed, as our lives become increasingly saturated by technology, we may come to expect
such devices in justice settings, much as jurors may expect advanced technology to be used
when evidence is presented (Shelton 2010). Although significant attention has been paid to
the role of the image in the courtroom, the mode via which that image is delivered is both
under-theorised and under-researched.
While the introduction of new technologies in the justice process may serve to enhance
efficiency and understanding in the running of a trial, there can be an ongoing tension between
these principles and that of fairness (Mulcahy 2008; Wallace 2008; McKay 2015).
Unsurprisingly, providing tablets to jurors in criminal juries raises similar concerns. For
example, while juror recall of evidence may be enhanced, or deliberation time decreased,
some jurors may be disadvantaged if they are unfamiliar with such technology, and
consequently may disengage from deliberations. In addition, the use of technology may result
in undue weight being given to some pieces of evidence over others. If electronic evidence
comes largely from the prosecution, these issues may compromise the right to a fair trial.
Before Australian juries are given tablets to use in deliberation, it is important to identify any
possible prejudicial effects through careful empirical research.
This article outlines an experiment conducted to explore the tension between productivity
and fairness and test the ways in which tablets in the jury room shape juror engagement with,
and deliberation about, evidence. This was achieved by examining the techniques that mock-
jurors utilise — both individually and as a collective group — to interrogate and deliberate
using evidence presented either in digital or hard-copy form. The impact of tablet usage on
both the verdicts and the deliberative process were the key outcomes of interest at this stage.
We also present preliminary findings about how the use of tablets may impact the quality of
the deliberation.1
Visual aids in the deliberation room
The right to a fair trial is considered a fundamental human right (United Nations 1948).
Fairness, or due process, includes the right to a timely hearing before an impartial judge, with
1 This study was not intended to privilege any particular brand of tablet; however, preliminary tests found that
iPads achieved most purposes due to their ubiquity, readily learned techniques for moving between and within
documents, and the integration of iPads with Apple TV.
NOVEMBER 2015 DIGITAL EVIDENCE IN THE JURY ROOM 181
the opportunity to confront one’s accusers. Under the Australian Constitution (s 80) and in
most common law jurisdictions, the right to be tried by a jury of one’s peers is also considered
a fundamental right (Fricke 1997), although, in Australia, state-based jury trials are generally
available only for indictable offences. While there is great faith in the institution of the jury,
information given to jurors is carefully regulated to protect the rights of the accused and to
ensure that jurors decide the case only on the basis of evidence presented in the courtroom
(McEwan 1998). This means that jurors may not conduct independent research using external
sources (Bell 2010) — a challenge facing contemporary jurors who are ever more accustomed
to instant internet and social media access (St Eve et al 2014).
While, traditionally, juries were forbidden from taking notes in case it distracted them
from the court proceedings, research has shown it is an effective technique to help jurors with
recall in the deliberation room (Anderson 2002; Marder 2010). As evidence presented at trials
has become increasingly complex (Waites and Giles 2005), concerns over jurors’ capabilities
has warranted further research into innovative ways of aiding their decision-making (Penrod
and Heuer 1997) to prevent them from addressing an information overload by engaging in
shortcuts, such as resorting to stereotypes (Schuller et al 2005) or relying on ‘superficial
characteristics of expert witnesses rather than upon the actual evidence and a careful
consideration of the reliability of an expert’s testimony’ (Waites and Giles 2005:22).
To combat these issues and encourage better informed jury decisions, Australian judges –
as well as judges in other common law countries – provide jurors with additional information
to take with them into deliberations (NSW Law Reform Commission 2012), including
interview transcripts and exhibits (such as witness statements, photographs and video
footage). For individual jurors, such technological aids may prompt their memory and
enhance comprehension and engagement; for the jury as a whole, they may improve the
thoroughness of the deliberation (Field et al 1996; Marder 2001); well-informed and critical
discussion and debate among jurors may be stimulated, cognitive shortcuts avoided and fairer
outcomes achieved (Rijnbout and McKimmie 2012).
Integrating visual displays into jury deliberations could offer an efficient way of managing
the cognitive pressure placed on them (Mayer and Moreno 2003). Research suggests that one
form of visual display, tablets, can improve learning outcomes for kindergarten pupils
(Verenikina and Kervin 2011), people with intellectual disabilities (Kagohara et al 2013) and
management students (Cheng 2013). In order, then, for jurors to be ‘active learners’ (Marder
2001:1260), their engagement with digital evidence on tablet devices may improve their
ability to remember the facts and analyse the case. Certainly, for ‘net generation’ jurors who
have spent on average 10 000 hours playing computer games and fewer than 5000 hours
reading books, screens will be more familiar than paper (Barnes et al 2007).
Providing jurors with an additional shared digital display that is linked to individual tablets
might mitigate concerns about reduced juror interaction and allow the jury, as a collective, to
become an ‘information processor’ or a sense-making unit (Hinsz et al 1997; Seifert et al
2012; Vogt et al 2011). In this configuration, tablets could serve as an ‘action space’, enabling
individual jurors to source relevant information from the evidence provided, while the shared
screen could become a ‘reflection space’, enabling the collective to identify patterns and test
claims (Schneider and Shen 2010). Indeed, there is no shortage of other types of ‘multi-surface
environments’, from a whiteboard managed by a single user to multiple users or interactive
multi-user tabletops, and each of these may offer different affordances or support different
levels of accessibility and collaboration for those who are unfamiliar with technology and
those with more experience (Buisine et al 2012).
182 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
However, arguments against placing certain digital evidence in the hands of jurors remain
compelling. For instance, if powerful or graphic imagery may influence verdicts (Bright and
Goodman-Delahunty 2006), then readily accessible digital images that allow for a quick pinch
and zoom might exacerbate this problem (Douglas et al 1997). Even with the introduction of
technology in the jury room, there will remain a gate-keeper role for the trial judge with
respect to emotive imagery. Furthermore, relative to the use of paper-based information and
evidence, a tablet might deflect jurors’ attention from the group (Cole and Stanton 2003;
Eliasson et al 2011). This in turn could undermine quality decision-making by the collective
by reducing consideration of alternative viewpoints put forward by other jurors (Rijnbout and
McKimmie 2012).
The introduction of tablets in the jury room may also change the dynamic of jury
deliberations in more subtle ways. Some research in educational settings and in business
meetings (Bajko 2012) suggests that we are adept multi-taskers who can use mobile devices
and participate in other conversations at the same time with ease. Other research suggests that
handheld device use among students may lead to less active involvement and participation
(Scott et al 2003). It is arguable that this issue could be mitigated by the introduction of a
shared display (Liu and Kao 2007), requiring jurors to cooperate and jointly engage in the
material provided to them.
This raises questions about how images that are shared through digital technology will
impact on the ritual dynamics of jury deliberation. Images presented in court do not ‘speak
for themselves’ (Feigenson and Speisel 2009). Rather, they are connected to words, to a story
that is constructed by witnesses, the accused and lawyers through the narrative of the trial
(Cammiss 2012). While jurors are also taking part in the storytelling process (Pennington and
Hastie 1993), the ways in which images and deliberation come together as jurors co-construct
narratives have not yet been investigated in depth. For instance, Feigenson (2014) has
suggested that visual displays in the courtroom give us a sense of community and common
purpose as they:
provide common perceptual and conceptual ground between triers of fact and witnesses and
among the triers themselves. They are tangible and publicly shared representations of the real
which allow decision makers a single basis for judgment and the confidence that the judgment
is arising from that visually salient, publicly available object (Feigenson 2014:19).
While this shared perception may conceal ‘the phenomenological variability of people’s
uptakes of what they see on the screen as well as their divergent uses of what they see to reach
their decisions’ (Feigenson 2014:19), this phenomenological divergence may be revealed
once screens move into the deliberation room, where images can be contested, challenged and
reinterpreted over the course of a discussion.
Ultimately, the configuration of technologies is very likely to shape and change the ways
jurors and juries think about and deliberate on evidence. Will these changes mean that group
processes suffer as individual jurors bury their heads in their own tablets? Will jurors be
‘seduced’ by their screens? Not unlike the CSI effect (discussed below), will jurors rely too
heavily on the tablet, believing it holds all the answers, rather than spending time applying
their own analysis to the evidence? Will the use of tablets undermine the right of the accused
to a fair trial?
NOVEMBER 2015 DIGITAL EVIDENCE IN THE JURY ROOM 183
Methodological challenges and insights
It is well known that it is a challenge to investigate the ‘black box’ of jury decision-making
(Devine 2012). For good reason, the anonymity and privacy of the jury deliberation process
is closely protected. While actual jurors have been surveyed about their deliberations, their
understanding of the evidence and their attitudes to various features of the criminal trial
process (see, for example, Zander and Henderson 1993; Thomas 2010; Warner and Davis
2013), in Australia the strict regulation of research into jury deliberations means that much of
what we know about jury decision-making is through mock-jury experiments, where research
participants are presented with a simulated trial or portions of a trial, and their decision-
making is evaluated. However, mock-jury research has been criticised for not being realistic,
thereby making it difficult to generalise from the research to real-life juries (Bornstein 1999;
Weiner et al 2011). The strongest designs attempt to mitigate this, at least partly, by using
jury-eligible citizens instead of psychology undergraduates, and simulated trials instead of
written transcripts, and by including a deliberation phase (Finch and Munro 2008).
Nevertheless, any conclusions will be more credible if mock-jury research is complemented
by other methods, including naturalistic studies that compare the results of jury trials with
demographic mixes of juries and trial characteristics (Devine 2012).
Mock-jury research generally yields two types of data. Surveys — both before and after
deliberation — can provide insight into why people come to a particular verdict and why they
change their verdict, and how this might be associated with demographic background and
prior attitudes. By randomly assigning jurors to different conditions, as we did in this study,
we can also compare the outcomes associated with the two conditions. If the assignment is
correctly conducted (the groups are equivalent), then we can attribute a causal connection
between the intervention (say, allocation to iPad or paper conditions) and the change in
outcome (verdict or certainty of guilt). When jury deliberations are observed and filmed, this
can provide qualitative data about the dynamics and interactions that characterise the
deliberation (Goodman-Delahunty et al 2011).
The current study
The current study set out to test whether using tablets in jury deliberations changed jurors’
verdicts and perceptions about a case compared with having the same information on paper.
Research participants were members of the Victorian jury pool who were not required for a
trial and who volunteered to take part in the study. They were shown a video simulation of a
trial, and were asked to deliberate about the case using evidence provided either on paper or
on iPads. Importantly, only the evidence itself was accessible on the iPads; no other
applications or internet access were provided.
Method
Participants and design
Participants were 152 community members selected from the Victorian jury pool who were
excused from service on the day of the study or who otherwise volunteered to participate
(75 women, 77 men). The mean age was 44.7 years2 (SD=15.1 years), and age ranged from
2 The median age for the Victorian population at the 2011 census was 44 years (ABS 2011).
184 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
18 to 80 years. The vast majority (92.1 per cent) of the sample had not previously served on
a jury. Two-thirds of the sample had completed some form of tertiary education: 40.8 per cent
of participants had an undergraduate degree and 23 per cent had a graduate qualification. An
additional 30.3 per cent had secondary school as their highest level of education, while 5.9 per
cent of the sample finished formal education after primary school. The sample characteristics
were broadly consistent with Australian population characteristics: 50.2 per cent female,
24.7 per cent university degree and 20 per cent secondary school (ABS 2011), although the
mock-jury sample had a somewhat higher education level.
The design was a 2 (evidence condition) by 2 (deliberation) mixed design, with participants
being allocated to receive evidence via an iPad or on paper (evidence condition) and giving
their verdicts before and after deliberating as a group (deliberation). The latter factor was
within-subjects. All participants in the same testing session were allocated to the same
evidence condition, and each jury consisted of between eight and 12 participants.
Materials and procedure
The study was conducted in the Victorian County Court complex in Melbourne, in
consultation with the Victorian Juries Commissioner’s Office. Participants deliberated in a
room set up as a jury room within the jury assembly area. These measures helped to ensure
that the conditions of the experiment approximated as closely as possible those of a real jury.
Initial survey
Participants were asked for a number of demographic characteristics and attitudinal measures,
such as punitiveness. Items adapted from the juror bias scale (from Kassin and Wrightsman
1983; and modified by Tait 2011) were used to assess punitiveness and participants were
asked to indicate the extent to which they agreed with a number of statements on a five-point
Likert type scale of 1, strongly disagree, to 5, strongly agree. For example, participants were
asked to respond to items such as: ‘If a suspect runs from police, then he/she probably
committed the crime’; ‘Judges are too soft on offenders’; and ‘Offenders are given more rights
than their victims’. Overall there were 15 items, which formed a reliable scale (=.76).
As a measure of participants’ familiarity with tablet technology, participants were asked
about their ownership and use of smartphones and tablets. As there could also have been some
potential impact of television viewing preferences on people’s responses to, and expectations
of, the digital evidence, participants were asked about the number of hours per month they
spent watching various types of programs. 3
Trial simulation
Following this, participants watched a 60-minute video of a simulated criminal trial where the
defendant was charged with conspiracy to commit a terrorist act. The trial, while hypothetical
and performed by actors, was based very closely on two actual criminal trials, and was
validated via a process of consultation with judges and barristers to ensure that the script was
as realistic as possible. The terrorism conspiracy scenario had the accused charged with
3 Crime scene investigation programs were separated from other crime programs to allow for identification of a
possible ‘CSI effect’. Although the existence of a CSI effect has not been proven conclusively, some research
has shown that jurors who watch many hours of this type of program tend to have higher expectations of scientific
evidence, which may consequently affect their verdicts. See, for example, Schweitzer and Saks 2007, who find
a CSI effect. In contrast, see Podlas 2006, who does not. For a view that falls somewhere in between these two,
see Shelton 2008, who found that, while heavy viewers of crime scene investigation shows had higher
expectations of scientific evidence, they were not more likely to convict.
NOVEMBER 2015 DIGITAL EVIDENCE IN THE JURY ROOM 185
obtaining materials for a bomb that was to be detonated in a cinema. As in the actual trials on
which the scenario was based, the prosecution case relied on circumstantial evidence. In order
to encourage deliberation, the evidence presented was designed in a pre-testing stage to result
in a 50 per cent conviction rate.
Main elements of the evidence
The prosecution evidence was presented on either paper or iPads. Items of evidence were
provided for each of the main elements of the charges, such as the defendant’s storage of large
amounts of different chemicals and his anti-Western ideologies. Images were sourced from
publicly available archives. Examples of the sorts of images used included political leaflets
written in Arabic and English, screenshots of beheadings, images of the various chemicals
allegedly found in the defendant’s garage and marked maps of cinemas that were allegedly
the targets of the proposed terrorist attack. Also included were transcripts of alleged telephone
calls and a transcript of some of the testimony of one prosecution witness. In total, 50 pieces
of evidence were available for jurors to consider.
Pre-deliberation questionnaire
After watching the video, jurors completed an initial survey to record their individual verdict:
guilty or not guilty. Participants were also asked how confident they were with their decision,
on a scale of 0 per cent, not at all confident, to 100 per cent, completely confident. They were
also asked how likely it was that the defendant had committed each of the aspects of the
alleged crime, from 1, not at all likely, to 7, very likely. These aspects included whether the
defendant had made an agreement with others to carry out an illegal activity, had made an
agreement to plant a bomb, had taken some action towards carrying out the plan, and whether
the plan had a terrorist objective (=.94). Together, these three measures of verdict were
designed not only to assess the verdict-based outcome of the trial, but also to detect subtle
variations in participants’ perceptions about the case.
Group deliberation
Jury groups were then provided with 50 images that represented the prosecution evidence.
Each group was asked to deliberate under one of two conditions: a traditional paper condition,
involving the evidence on hard copies in individual ring binders with a table of contents
(replicating current procedure in Victoria), or the tablet condition, involving viewing that
same evidence on an individual iPad (standard size screen with a foldable stand) with images
displayed via Dropbox, including a listing of all the images in a margin on the left-hand side
of the screen and the selected image on the rest of the screen. This second condition had an
added dimension: all iPads were linked via the Apple iOS screen-sharing interface through
Apple TV to a shared 42-inch screen presented on one side of the room. The purpose of the
sharing technology was to allow participants to mirror a particular image they were viewing
on their individual iPad onto the larger screen for the group to see and use in their discussion.
It was intended as an additional technology that could enhance group cohesion and minimise
the potential for people to lose themselves in their individual screens and neglect the group
process required.
Post-deliberation questionnaire
The final questionnaire included the same three measures assessing jurors’ individual views
regarding the verdict as the pre-deliberation questionnaire. The five-item measure assessing
the likelihood that various elements of the offence had happened formed a reliable scale
(=.94). This questionnaire also assessed the group’s verdict with a dichotomous item: guilty,
not guilty.
186 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
Results
Preliminary analyses
We also assessed the possible effect of television viewing preferences on participants’ verdicts
due to differences in expectations about digital evidence. Table 1 summarises participants’
viewing habits. Participants did not spend much time viewing crime scene investigation-type
programs, general crime programs or other reality programs, with about half the sample not
watching any of these programs at all. The mean number of hours spent watching crime-
related (including CSI) shows was two hours per week (SD=1.2 hours). Number of hours
watching these shows was not correlated with any of the three verdict-related measures, either
pre- or post-deliberation — all correlations less than .14 in absolute magnitude and all p’s
greater than .09. Given the lack of relationship between both of these factors — familiarity
with tablets and television viewing habits — and the measures of verdicts, they were not
controlled for in the main analyses.
Table 1: Television viewing habits of sample
TV viewing per month
(number of hours)
Type of television show
CSI shows (%)
Crime shows (%)
Reality shows (%)
None
54.7
46.9
47.6
1–2
24.3
24.5
28.3
3–4
8.8
14.3
14.5
5–6
8.1
8.2
4.8
7–8
2.0
2.7
0.7
9–10
0.7
1.4
0.7
11–12
0.0
0.0
1.4
13+
1.4
2.0
2.1
Main analyses
Verdict
A repeated measures logistic regression was used to assess the possible effect of evidence
condition on participants’ verdicts pre- and post-deliberation. See Table 2 for a breakdown of
verdicts by condition. For both the paper and the iPad condition, less than half of participants
found the defendant guilty both before the deliberation and after. A chi-square test indicated
that there were no systematic differences in verdicts either prior to (2(1)=0.1, p=.74) or after
deliberations (2(1)=0.3, p=.57). There was also no significant difference in whether
participants changed their verdicts after deliberation, with 14 participants changing their
verdicts in the paper condition (seven to conviction, seven to acquittal), and 11 (three to
conviction, eight to acquittal) doing so in the iPad condition (2(1)=1.8, p=.41).
NOVEMBER 2015 DIGITAL EVIDENCE IN THE JURY ROOM 187
Table 2: Verdict (% finding guilty) by evidence condition
Guilty verdicts
Condition
Pre-deliberation (%)
Post-deliberation (%)
Paper evidence
39.5
40.0
iPad evidence
42.1
35.5
Confidence
Participants’ overall levels of confidence were relatively high. A mixed 2 (evidence condition)
by 2 (deliberation) ANOVA, with repeated measures (on the last factor) indicated that there
was a main effect of deliberation on participants’ level of confidence in their verdicts
(F(1, 149)=10.3, p<.001, 2=.07). Participants were more confident in their verdicts following
deliberation (M=78.3%, SD=20.4) compared to before deliberating (M=72.7%, SD=20.4).
There was no effect of evidence condition (F(1, 149)=0.2, p=.67), nor was the interaction
significant (F(1, 149)=0.9, p=.35) (see Table 3 for cell means).
Elements of verdict
A similar mixed ANOVA for the scale assessing the likelihood that the elements of the
offence had occurred again found an effect of deliberation (F(1, 148)=4.6, p=.03, 2=.03).
Participants thought it was more likely that the elements of the offence had occurred before
deliberation (M=4.5, SD=1.6) compared to after deliberation (M=4.3, SD=1.8). Again, there
was no effect of evidence condition, (F(1, 148)=0.1, p=.79) and no significant interaction
between evidence condition and deliberation, (F(1, 148)=0.5, p=.48) (see Table 3 for cell
means).
Table 3: Means (SD) for verdict-related measures
Deliberation
Pre-deliberation
Post-deliberation
Paper evidence
iPad
evidence
Paper evidence
iPad
evidence
Confidence
71.2% (21.5)
74.1% (19.4)
78.5% (21.0)
78.1% (19.9)
Likelihood of
elements
4.5 (1.6)
4.5 (1.7)
4.2 (1.8)
4.3 (1.8)
Juror bias
To examine the extent to which the relationship between participants’ pre-existing attitudes
and verdicts might be influenced by the way in which the evidence was presented, the measure
of punitiveness was analysed. The average score on this measure was 2.7 (SD=0.5), and
participants’ scores on this measure were correlated with pre-deliberation verdicts
(r=.29, p<.001), post-deliberation verdicts (r=.25, p=.002), and post-deliberation estimates of
the likelihood that the elements of the offence had occurred (r=.18, p=.03). Participants who
scored higher on the measure of punitiveness were more likely to convict
188 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
(pre- and post-deliberation) and were more likely to think that the elements of the offence had
occurred. All other correlations with the various verdict-related measures were not significant.
Next, to test for a possible moderating role of punitiveness, participants were categorised
as being either higher or lower on punitiveness based on the median, which was 2.7. This
variable was then included in the previous mixed ANOVAs as a third factor (although
moderated regression is more typically used to test for these types of effects with continuous
predictors, the repeated measures nature of the data make this impractical). There were no
moderated effects involving punitiveness for the measures of confidence or likelihood that
the elements of the offence had occurred. The same was true for a similar analysis for the
measure of verdict. The only significant effects involving punitiveness were main effects on
verdicts (F(1, 145)=16.3, p<.001) and the likelihood that the elements of the offence had
occurred (F(1, 145)=10.1, p=.002). These effects were consistent with the correlations
described above.
Deliberation dynamics
While a detailed qualitative analysis of the quality of juror interactions has yet to be
undertaken, some initial comments for policy implications may be made about the ways in
which participants in the different conditions related to one another. In both conditions, jurors
maintained good eye contact with each other and engaged in a lively debate. Both groups
spent between one and ten minutes at the beginning of each deliberation quietly immersed in
their evidence books/iPads. The iPad group moved into discussion quicker, while the paper
group spent longer flipping through pages. However, once they started talking, those with the
evidence on paper did spend more time looking up at each other and less time moving back
and forth through their folders. This may be a function of the difficulty of moving around the
bulky folder. By having a list of every image down the left of the iPad screen — each one
numbered and with a title — jurors in this condition could easily locate the image they wished
to view. It is likely that, due to this this ease, jurors in the tablet condition continued to flick
through their images, while the difficulty of moving through the paper folders made it more
attractive for jurors to look directly at each other and forgo looking through their images. In
feedback at the end of each session, jurors in the paper condition suggested that moving
through the folders was slow and that they sometimes could not find the images they were
seeking. In contrast, jurors in the tablet condition consistently commented on the speed and
ease of shifting through the images.
There seemed to be no differences between the conditions in the ‘civility’ of the
deliberative process. In both, participants appeared to treat each other with respect and listen
to what others had to say (the nature of the interaction was measured; findings are beyond the
scope of this article). Jurors who engaged with the iPads tended to view images on their own
devices and rarely used the ‘sharing screen’ provided. In feedback sessions, some participants
commented that the sharing screen was a ‘waste of time’ when they were all easily able to
pull up the image on their own screens. However, in most deliberations, one or two jurors in
the iPad condition would use the screen to draw the other jurors’ attention to a specific piece
of evidence. Overall, the deliberation was a successful solidarity-building project for both
groups, consistent with other research on the dynamics of deliberation (Gastil et al 2008).
Further into the deliberation process, both groups looked at the evidence less and at each other
more, suggesting that they quickly moved away from passive recipients to active creators of
a common story.
NOVEMBER 2015 DIGITAL EVIDENCE IN THE JURY ROOM 189
Discussion
In terms of both outcome of deliberation — the verdict imposed — and the quality of
deliberation — the nature of the interactions themselves — there appear to be no major
differences between the paper and tablet conditions. That is, the use of tablets to view digital
evidence does not detract from the deliberative process and does not prejudice the jury or
compromise the right of the accused to a fair trial.
Given the likely savings in time and resources involved in using evidence in digital form,
it is expected that mobile devices will become a normal feature of the courtroom environment
not only for legal personnel, but also for jurors. The research reported in this article suggests
that mobile technologies might also be appropriately extended to the jury room. As key
decision-makers in criminal trials (and, in Victoria at least, in civil trials), jurors will
increasingly be given tablets both to view the evidence in court and to review it afterwards in
the jury room. This study has suggested that iPads are easy to use and simplify the task of
retrieving information, even for those jurors with limited or no experience of computer use.
Whether this conclusion applies equally to other tablets would need to be tested.
In terms of cost, the savings made using iPads include avoiding the need for small screens
to be placed in the jury box in each jury courtroom, hours of staff time photocopying
documents, and potentially reduced deliberation time. However, while it might seem from
this study that there are no impediments to allowing mass use of iPads for jury deliberation,
there are a number of cautions that should be noted. First, there is a suggestion from the study
that iPads might encourage jurors to pay more attention to the evidence they get in digital
form and less to the oral evidence that is retrievable only through trial transcripts. Second,
and closely related to this, such easy access to the evidence file could make it easier for the
jury to abandon the interpretation that emerges from courtroom exchanges in examination-in-
chief and in cross-examination to form their own interpretation of scientific diagrams and
other computer-generated representations, rather than the interpretation that emerges from the
verbal exchanges in examination and cross-examination. For example, the jury could thus
take on the role of arbiter of scientific evidence, deciding whether the fingerprint really did
belong to that person or whether the blood pattern on the floor came from that particular
weapon. With easy access to images on the iPad, there is a real danger that jurors will provide
their own interpretations of not just photographs, but also scientific diagrams. This, however,
is an evaluative task that is open to all jurors irrespective of the form in which evidence is
presented. Finally, there are the more practical aspects of having a large number of tablets
available — which may be cost prohibitive — and the time and effort required to keep them
updated as new software is released.
Emboldened by the facility of using iPads relative to unwieldy folders, jurors may
increasingly ask for more evidence in digital form. Judges, reluctant to curb the enthusiasm
of jurors, may agree. This could allow the jury to conduct what could be considered a form of
second trial, (seemingly) fully equipped with all the information in digital form. To the extent
that this approach reflects the normal processes of weighing up evidence in a deliberative
group setting, such a procedure is entirely appropriate. But it is also possible that the common
law jury, charged with testing the strength of the prosecution case, will move subtly towards
its civil law counterpart, responsible for finding the truth. While these are speculations, the
opportunities and dangers posed by greater use of iPads do warrant further research.
It should be noted that this study was limited to one type of case, involving a terrorist
conspiracy, with circumstantial evidence. Other types of cases may produce other results. For
example, cases that rely on (notoriously unreliable) eyewitness testimony may be decided by
190 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
juries that ‘decide for themselves’ whether a fuzzy CCTV image matched the person in the
dock. Further, this study was limited to one (admittedly large) jury pool in metropolitan
Melbourne. It is possible that the jurors in this study were more cosmopolitan or more
sceptical than equivalent jurors in other jurisdictions or in regional or rural areas. The
experimental method, for reasons of economy, did not have a fully balanced design, with one
experimental group not receiving a pre-deliberation survey. The simplified design used here
does not take account of possible learning effects between the two surveys.
Conclusion
Australian courts are already moving quickly to make greater use of digital evidence, so it
seems inevitable that large, bulky folders will be replaced by slender tablets both at the bar
table and in the jury room. While these are preliminary findings and further analysis will be
undertaken to understand the nuances underlying these headline results, they should provide
some level of reassurance to those in the courts who wish to expand the use of mobile
technologies beyond the courtroom into the jury room. The study confirms that the technology
works (when properly managed), passes the user satisfaction threshold and has no obvious
drawbacks.
The next stage after all analyses have been completed is to develop guidelines to assist
courts with implementing tablet technology. It is hoped that this study will contribute to
making that transition as easy as possible.
Acknowledgements
This study has been funded by the Canadian Social Sciences and Humanities Research
Council as part of the Cyberjustice Consortium based at the University of Montreal (Grant
number: CRSH 412-2011-1004). It has been developed by a team including David Tait
(Western Sydney University), Christian Licoppe (Paris Tech), Meredith Rossner (London
School of Economics) and Blake McKimmie (University of Queensland). The Cyberjustice
Consortium brings together scholars from several countries with an interest in the impacts of
emerging technologies on justice processes. We gratefully acknowledge the assistance of the
Victorian Juries Commissioner’s Office, the Victorian County Court, the Victorian
Department of Justice and Court Services Victoria.
NOVEMBER 2015 DIGITAL EVIDENCE IN THE JURY ROOM 191
Legislation
Commonwealth of Australia Constitution Act 1901 (Cth) (‘Australian Constitution’)
References
Anderson DA (2002) ‘Let Jurors Talk: Authorizing Pre-Deliberation Discussion of the Evidence During
Trial’, Military Law Review 174, 92–124
Australian Bureau of Statistics (‘ABS’) (2011) Census Basic Community Profile — Victoria: Table B02
<http://www.censusdata.abs.gov.au/census_services/getproduct/census/2011/communityprofile/SOS2
2?opendocumentandnavpos=220>
Bajko R (2012) ‘Mobile Telephone Usage, Attitude, and Behavior During Group Meetings’, Journal of
Information Systems Applied Research 5(2), 4–13
Barnes K, Marateo R and Ferris S (2007) ‘Teaching and Learning with the Net Generation’, Innovate
3(4), 1–8
Bell DW (2010) ‘Juror Misconduct and the Internet’, American Journal of Criminal Law 38(1), 81–99
Bornstein BH (1999) ‘The Ecological Validity of Jury Simulations: Is the Jury Still Out?’, Law and
Human Behavior 23(1), 75–91
Bright DA and Goodman-Delahunty J (2006) ‘Gruesome Evidence and Emotion: Anger, Blame, and
Jury Decision-Making’, Law and Human Behavior 30(2), 183–202
Buisine SP, Besacier G, Aoussat AZ and Vernier FDR (2012) ‘How Do Interactive Tabletop Systems
Influence Collaboration?’, Computers in Human Behavior 28(1), 49–59
Cammiss S (2012) ‘Law and Narrative: Telling Stories in Court’, Law and Humanities 6, 130–43
Cheng J (2013) ‘Flipping an MIS Class with Mobile Technology: An Examination of the Effects of the
Use of iPads on Student Learning Outcomes and Satisfaction with Learning’, Journal of Research in
Business Information Systems 6, 27–49
Cole H and Stanton D (2003) ‘Designing Mobile Technologies to Support Co-Present Collaboration’,
Personal and Ubiquitous Computing 7(6), 365–71
Devine DJ (2012) Jury Decision Making: The State of the Science, NYU Press
Douglas KS, Lyon DR and Ogloff JR (1997) ‘The Impact of Graphic Photographic Evidence on Mock
Jurors’ Decisions in a Murder Trial: Probative or Prejudicial?’,
Law and Human Behavior
21(5), 485–501
Dumoulin L and Licoppe C (2015) ‘Trial at a Distance: Videoconference Technology as a Policy Tool?’,
Paper presented at International Conference in Public Policy, 1–5 July 2015, Milan
Eliasson J, Pargman TC, Nouri J, Spikol D and Ramberg R (2011) ‘Mobile Devices as Support Rather
than Distraction for Mobile Learners: Evaluating Guidelines for Design’, International Journal of
Mobile and Blended Learning 3(2), 1–15
Feigenson N (2010) ‘Visual Evidence’, Psychonomic Bulletin and Review 17(2), 149–54
Feigenson N (2014) ‘The Visual in Law: Some Problems for Legal Theory’, Law, Culture and the
Humanities 10(1), 13–23
192 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
Feigenson N and Spiesel C (2009) Law on Display: The Digital Transformation of Legal Persuasion
and Judgment, NYU Press
Field KH, Zaffarano MA and Liou YI (1996) ‘Bringing Technology to the Jury Deliberation Table’,
The Justice System Journal 18(3), 317–31
Finch E and Munro VE (2008) ‘Lifting the Veil: The Use of Focus Groups and Trial Simulations in
Legal Research’, Journal of Law and Society 35(s1), 30–51
Fricke G (1997) ‘Trial by Jury’, Research Paper 11 1996–97, Parliamentary Library
Gastil J, Black LW, Deess EP and Leighter J (2008)
‘From Group Member to Democratic Citizen: How
Deliberating with Fellow Jurors Reshapes Civic Attitudes’, Human Communication Research 34(1), 137–69
Goodman-Delahunty J, Rossner M and Tait D (2011) ‘Simulation and Dissimulation in Jury Research:
Credibility in a Live Mock Trial’ in L Bartels and K Richards (eds), Qualitative Criminology: Stories
from the Field, Federation Press, 30–40
Hinsz VB, Tindale RS and Vollrath DA (1997) ‘The Emerging Conceptualization of Groups as
Information Processors’, Psychological Bulletin 121, 43–64
Horan J and Maine S (2014) ‘Criminal Jury Trials in 2030: A Law Odyssey’, Journal of Law and
Society 41(4), 551–75
Kagohara DM, Van Der Meer L, Ramdoss S, O’Reilly MF, Lanciono GE, Davis TN, Rispoli M, Lang R,
Marschik PB, Sutherland D, Green VA and Sigafoos J (2013) ‘Using iPods and iPads in Teaching
Programs for Individuals with Developmental Disabilities: A Systematic Review’, Research in
Developmental Disabilities 34, 147–56
Kassin SM and Wrightsman LS (1983) ‘The Construction and Validation of a Juror Bias Scale’, Journal
of Research in Personality 17(4), 423–42
Lederer FI (2004) ‘Technology-Augmented Courtrooms: Progress amid a Few Complications, or the
Problematic Interrelationship between Court and Counsel’, New York University Law Review 60,
675–97
Liu CC and Kao LC (2007) ‘Do Handheld Devices Facilitate Face-to-face Collaboration? Handheld
Devices with Large Shared Display Groupware to Facilitate Group Interactions’, Journal of Computer
Assisted Learning 23(4), 285–99
Longhofer RS (1999) ‘Jury Trial Techniques in Complex Civil Litigation’, University of Michigan
Journal of Legal Reform 32, 335–56
McEwan J (1998) Evidence and the Adversarial Process: The Modern Law (2nd ed), Hart Publishing
McKay C (2015) ‘Video Links from Prison: Court “Appearance” within Carceral Space’, Law, Culture
and the Humanities (forthcoming)
Marder NS (2001) ‘Juries and Technology: Equipping Jurors for the Twenty-First Century’, Brooklyn
Law Review 66, 1257
Marder NS (2010) ‘Answering Jurors’ Questions: Next Steps in Illinois’, Loyola University Chicago
Law Journal 41(4), 727–52
Mayer RE and Moreno R (2003) ‘Nine Ways to Reduce Cognitive Load in Multimedia Learning’,
Educational Psychologist 38(1), 43–52
NOVEMBER 2015 DIGITAL EVIDENCE IN THE JURY ROOM 193
Mulcahy L (2008) ‘The Unbearable Lightness of Being? Shifts towards the Virtual Trial’, Journal of
Law and Society 35(4), 464–89
New South Wales Law Reform Commission (2012) Jury Directions in Criminal Trials, Report 136
Pennington N and Hastie R (1993) ‘The Story Model for Juror Decision Making’ in R Hastie, Inside the
Juror: The Psychology of Juror Decision Making, Cambridge University Press, 192–221
Penrod SD and Heuer L (1997) ‘Tweaking Commonsense: Assessing Aids to Jury Decision Making’,
Psychology Publication of Policy and Law 3(2–3), 259–84
Podlas K (2006) ‘The CSI Effect and Other Forensic Fictions’, Loyola of Los Angeles Entertainment
Law Review 27, 87–125
Rijnbout JS and McKimmie BM (2012) ‘Deviance in Group Decision Making: Group–Member
Centrality Alleviates Negative Consequences for the Group’, European Journal of Social Psychology
42(7), 915–23
Rijnbout JS and McKimmie BM (2012) ‘Deviance in Organizational Group Decision-Making: The Role
of Information Processing, Confidence, and Elaboration’, Group Processes and Intergroup Relations
15(6), 813–28
Rowden E, Wallace A, Tait D, Hanson M and Jones D (2013) ‘Gateways to Justice: Design and
Operational Guidelines for Remote Participation in Court Proceedings’, University of Western Sydney
<http://www.uws.edu.au/__data/assets/pdf_file/0019/471223/Gateways_to_Justice_Guidelines.pdf>
Schneider B and Shen C (2010) ‘Enhancing Tabletops: Multi-Surface Environments for Collaborative
Learning’, Proceedings of ICLS Workshop 2010 <https://scholar.google.com.au/citations?view_op=
view_citation&hl=en&user=ju8JAW0AAAAJ&citation_for_view=ju8JAW0AAAAJ:d1gkVwhDpl0C>
Schuller RA, Terry D and McKimmie B (2005) ‘The Impact of Expert Testimony on Jurors’ Decisions:
Gender of the Expert and Testimony Complexity’, Journal of Applied Social Psychology 35(6),
1266–80
Schweitzer NJ and Saks MJ (2007) ‘The CSI Effect: Popular Fiction about Forensic Science Affects the
Public’s Expectations about Real Forensic Science’, Jurimetrics 47, 357–64
Scott SD, Mandryk RL and Inkpen KM (2003) ‘Understanding Children’s Collaborative Interactions in
Shared Environments’, Journal of Computer Assisted Learning 19, 220–28
Seifert J, Simeone A, Schmidt D, Holleis P, Reinatz C, Wagner M, Gellersen H and Rukzio E (2012)
‘MobiSurf: Improving Co-Located Collaboration through Integrated Mobile Devices and Interactive
Surfaces’ in Proceedings of the 2012 ACM International Conference on Interactive Tabletops and
Surfaces, ACM, 51–60
Shelton DE (2008)
‘The “CSI Effect”: Does it Really Exist?’, National Institute of Justice Journal 259, 1–6
Shelton DE (2010) ‘Juror Expectations for Scientific Evidence in Criminal Cases: Perceptions and
Reality about the “CSI Effect” Myth’, Thomas M Cooley Law Review 27(1), 1–35
St Eve Burns P, Zuckerman M (2014) ‘More from the #Jury Box: The Latest on Juries and Social
Media’, Duke Law and Technology Review 12(1), 64–91
Tait D (2011) ‘Deliberating about Terrorism: Prejudice and Jury Verdicts in a Mock Terrorism Trial’,
Australian and New Zealand Journal of Criminology 44(3), 387–403
Thomas C (2010) Are Juries Fair?, Ministry of Justice Research Series 1/10
194 CURRENT ISSUES IN CRIMINAL JUSTICE VOLUME 27 NUMBER 2
United Nations (1948) Universal Declaration of Human Rights, GA Res 217A (III), UN GAOR, 3rd sess,
183rd plen mtg, UN Doc A/810 (10 December 1948)
Verenikina I and Kervin L (2011) ‘iPads, Digital Play and Preschoolers’, He Kupu 2(5), 4–19
Vogt K, Bradel L, Andrews C, North C, Endert A and Hutchings D (2011) ‘Co-located Collaborative
Sensemaking on a Large High-Resolution Display with Multiple Input Devices’ in Proceedings of the
13th IFIP TC13 Conference on Human–Computer Interaction, vol II, Springer-Verlag, 589–604
Waites R and Giles D (2005) ‘Are Jurors Equipped to Decide the Outcome of Complex Cases?’
American Journal of Trial Advocacy 29, 19–64
Wallace A (2008) ‘Virtual Justice in the Bush: The Use of Court Technology in Remote and Regional
Australia’, Journal of Law, Information and Science 19, 1–21
Warner K and Davis J (2013) ‘Involving Juries in Sentencing: Insights from the Tasmanian Jury Study’
Criminal Law Journal 37(4), 246–56
Wiener RL, Krauss DA and Lieberman JD (2011) ‘Mock Jury Research: Where Do We Go from
Here?’, Behavioral Sciences and the Law 29(3), 467–79
Zander M and Henderson P (1993) ‘Crown Court Study’, Royal Commission on Criminal
Justice, Research Study 19
- CitationsCitations0
- ReferencesReferences59
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