Some will be familiar with the Courtroom 21 Project. It is a joint venture of the Law School of the College of William and Mary, and the National Center for State Courts, both situated in Williamsburg. In essence it has developed and built a courtroom jam-packed with practically every known technological ‘aid’ to litigation, for the purpose of determining and demonstrating how technology can best improve the trial and appeals process in both civil and criminal cases. Demonstrations of the technology are given to outside visitors up to five times a week (Geoff Hoon MP, the Minister of State at the LCD, was one such in mid-September), and the Project Director, Professor Fred Lederer, has written extensively on the ‘so whats’ of all this, but this Working Conference was the first attempt to assemble a group of judges, court administrators and lawyers to discuss in depth the practical, procedural, behavioural and ethical ramifications of the use of such technology.
Accordingly, although I describe briefly some of the tools now available in Courtroom 21 itself, and in use in real courts in the USA and elsewhere, the real thrust of this article is to address some of the consequences of the use of such technology, and to consider from an English perspective where our courts might go from here.
High-tech Courtrooms
The Project defines a ‘high-tech’ courtroom as one which has all of the following built-in:
- real-time transcription of the oral evidence, including a facility for judge and counsel privately to mark and annotate (and keep their own private database of) such text as the evidence is given, coupled with some electronic means of keeping a permanent record not only of that testimony but also of the other evidence presented, such presentation being largely electronic itself;
- facilities for the presentation of evidence and other material in a visual, including computer-generated, form, and its subsequent storage and recall;
- the capacity to receive evidence and allow ‘attendance’ by remote video link.
Do High-tech Courtrooms Exist?
Courtroom 21 has the above and more. However, since Courtroom 21 is an experimental facility, and has only ever been used in one real case (a five-judge appeal with two judges appearing remotely), it is necessary first to gain some appreciation of the extent to which courtrooms of this kind already exist in the USA and elsewhere.
We were told that in the USA there are about nine State courtrooms, and possibly some 30 or so Federal District courtrooms that qualify for the full description, with many more coming on stream, and hundreds with some of the attributes – the use of video conferencing, for instance, being widespread for remote arraignment/first appearance in State criminal cases. In passing, it is perhaps a pity that the considerable contribution by England, and the Bar Council, to the learning, and jurisprudence, relating to video-conferencing and its use in Australia and Singapore has gone unrecognised in the USA, but such is life. There is one fully, ‘high-tech’ court in Europe – that being used for the war crimes/former Yugoslavia trial, one in Australia and one in Singapore. In fact, Australia is credited with being the first country to use the full range of technology in public investigative process. In November 1994 there opened a Royal Commission on corruption in the New South Wales police, which employed all of the techniques then available to make the process ‘paper-free’. Also, a 35-party civil case involving some A$ 2 billion and 55 counsel was tried in Australia using full ‘paper-free’ techniques. Both of these took place in ‘courts’ expressly modified and designed for the purpose.
Set against those criteria, England has no such courts. Of course, we all know that some high-profile cases, the Maxwell prosecution for instance, have employed both real-time transcription and document imaging and projection. One or more of these techniques is used on an ad hoc basis in commercial civil actions, but the use of portable equipment in a non-purpose-built environment does not qualify as being a ‘high-tech courtroom’. The OJ Simpson trial (the subject of much embarrassment) was done on a ‘portable equipment’ basis, and it transpires that many Federal prosecutors and some larger firms of trial attorneys have the equipment to install in a court for the purposes of a given trial. In marked contrast, perhaps, to the usual state of funding here, Federal public defenders have access to a nationally-organised pool of equipment and expert personnel for use in large criminal trials. So, the relative paucity of purpose-built high-tech courts understates the use of such equipment in the USA, and the fact of and desire for its use has led to much debate and pressure for change.
Federal Courts
Development in this field at a Federal, central, level is proceeding slowly, partly because the perceived (and real) need for standards and protocols, where what is being planned is provision for a whole system, rather than ad hoc local needs, has necessarily led to the slower process of strategic approach – but the strategy is to introduce this equipment. The Project was unable to confirm what the current time-scale is. However, at Federal District (and State) court level, things are moving much faster, albeit in an uncoordinated way – small/autonomous systems have a greater freedom of action. Some Federal District courts with ‘Article 3’ judges (appointed for life) have the advantage of controlling part of their budget in accordance with local, de-centralised, choice. This has enabled some Federal District judges to take charge of their own destinies in a way that simply could not occur here. One such, who was at the Working Conference (Judge Donald Walter from Louisiana), kitted out his court with all the ‘toys’ and decreed that from one year hence the use of paper in his court would be forbidden. He says that after the inevitable (and perhaps understandable) moaning from the local Bar, his court is now up and running on that footing and that everyone thinks it an enormous improvement on what went before. He thinks the trial time is regularly reduced by between 30 and 50%. Whether, and when, that translates into any saving of money from the court’s point of view is another story, but it saves the parties time in court. It is also said, time and again, by him and others, to permit a much more effective presentation of evidence and argument. Bearing in mind the vastly different trial processes, and underlying pressures, in the USA, this question of ‘effective presentation’ needs to be re-visited in an English context, although it is a certain fact that the eye communicates information to the brain more effectively than the ear.
State Courts
At a State level, there is greatly different experience from State to State. A judge from Oregon who has a ‘high-tech’ court was present; all Oregon courts may be so equipped in due course – but then there are fewer than 20 courts involved. New York City by contrast has many times as many courtrooms and is short of money; only one pilot has been run there – and that on the initiative of two court reporters using loan equipment for a two-year period which is coming to an end. Only recently have all judges there been armed with laptops/notebooks, and the take-up by the Bar has been slow – the percentage using even some of the facilities has been small and those using digital/computer graphics techniques very few indeed. There is little central authority at State level to mandate the use of such equipment or techniques. And yet elsewhere, we were told, it is pressure from the Bar which is leading to the need to consider greater provision, and the use of portable equipment is leading to the need for courts to address how they are to maintain their ‘record’ for appeal and other purposes, and what stance to take generally in respect of the manifold issues which the use of these new tools raises.
In one way this mirrors the English position on the relatively low-level question of video-conferencing. It is said to be essential for the future that there be widespread, if not universal, provision of video-conferencing links yet, at the same time, such facilities as already exist or which have formed part of pilot studies have always been massively under-used.
Lest it be assumed that the USA is some form of technician’s Nirvana/the land of plenty, I should stress that the question of what provision courts should make, and who should pay for it, and how, came up time and again. There were as many different answers as there were people present.
I should also add that standards and protocols are important, and they will be a very thorny issue. The approach here will need to be an integrated one, and there are no generic formats for much of this technology – the old ‘WordPerfect/Word’ dichotomy writ large.
Differences in Trial Process
It is time for a reminder as to some fundamental differences in the trial processes between England and the USA (if it is right to make compendious statements about over 50 separate jurisdictions – each of the States and the Federal courts).
Crime
In many jurisdictions, jurors are not allowed to make notes and take nothing with them into the jury room save what they recall. That, coupled with, in principle, no input from the judge in terms of ‘reminders’ of the evidence, places an additional premium on making a memorable impact at an emotional, or at least persuasive, level. Then there is the existing tendency to what a stuffy English lawyer might regard as ‘theatricality’ – moving around the courtroom, approaching the jury or the witness (not allowed, surprisingly, in all jurisdictions, whatever the television may have led one to think). There is also the detailed knowledge about each individual juror, arising out of the pre-trial selection process, which adds to the employment, or at least consideration, of psychology, whether ‘cod’ or otherwise.
US trial lawyers are trained in trial technique in a way that simply does not occur here. In readiness for the present and future use of high-tech courts, there are 10 fully-equipped mock trial courtrooms at the National Center for Advocacy in South Carolina for the sole purpose of training prosecutors. The National Institute for Trial Advocacy is going down the same track. Training, mark you, not in how to press the right buttons but in how to arrange and produce evidence, opening and closing speeches and other persuasive material, in a way which, allied with the technology, is thought to be the most effective for swaying a jury. This is not so much learning how to play a video, but how to script, produce and direct a whole film.
Civil
As for civil trials, the major difference (apart from some of the above) stems from the widespread use of juries to determine not only the facts and the verdict (defendant liable or not) but also the quantum of damage. In jurisdictions where damages are at large and where trial lawyers are on a no-win no-fee basis that may include as much as 40% of the jury’s award if successful, there is a powerful incentive to use all of the legitimate ‘tricks’/’toys’ available to make that crucially persuasive impression on the jury. Trials by judge alone (bench trials) do occur, but the majority of, for instance, significant personal injury claims depend on making the right impact on the jury.
The High-tech Itself
Against that background, what do the ‘toys’ amount to? I deal with them in the same order as the criteria listed by the Project, although it is important to note that I am not covering some of the less obviously ‘sexy’ things which are the sine qua non of a lot of this. Audio in the courtroom, for instance, is a huge problem on which the Project has done a great deal of work, the product of which is largely hidden and taken for granted. I start with real-time transcription.
Transcription
Real-time transcription is easy to visualise: the words being spoken stream across a screen in front of judge and counsel (it is currently thought distracting/unnecessary to put this material on jury/public screens). Depending on the system in use, this can be in draft or near-perfect form. In the latter case, a second human is involved, making corrections to the text as it comes from its first source. The primary source is either the familiar CAT stenographer, or someone using something called a ‘stenomask’. The operator of a stenomask speaks into a closed microphone that looks like a cross between a sports commentator’s microphone and a large oxygen mask. The operator hears what is said and repeats it into the stenomask where it goes to a powerful computer running dictation software specially ‘tuned’ to both the operator’s voice and the particular microphone, which filters out all extraneous noise. Expert use of ‘macros’ enables the skilled operator to delimit the text into Q: A:, etc as he or she goes along. Stenomasks are not new, but combining their use with voice recognition is – usually stenomask operators speak to an audio recorder for later transcription.
Added to the existence of this real-time text is the capacity for judge and counsel to mark or seed the text with relevance markers, index points, whatever, ‘on the fly’, thus reducing the burden of analysis and review after the court day is completed. The requirement to check what a witness has just said or what the witness said earlier in the case, can be met almost instantaneously and, in principle, with a high level of confidence in the accuracy of the record. That’s the good part. The bad is that this is expensive – one or two highly-trained personnel working all the time, and no one stenographer of either kind can keep going all day. So, the question arises – how much does anyone need this? It is certainly the Mercedes-Benz, but the mere fact that there is a lot more information means that it needs a lot more managing – the old problem with computers. It is better than the judge’s pen and hundreds of yards of audio tape, but is the extra cost justified? If the parties pay, they have chosen the answer ‘yes’, but unless the judge is trained to use the tools that go with it, there is no advance in practice, at least in terms of court time. Training for the judiciary is a key element in ensuring that advantage will be gained from the new technology.
A half-way house, which affords near-instantaneous checking of testimony but still requires some human ‘noting’, is digital audio ‘tape’ or, more likely, disk. Whilst there is as yet no commercially-available software that can search digital audio phonetically, a relatively untrained operator can ‘mark’ the audio with the name of the witness, the time, even the area of questioning and, using those markers, a particular passage of evidence can be found very quickly for replaying.
One by-product of real-time transcription is that it can be used, together with ‘close-caption’ techniques, to display the evidence in writing for the deaf (in much the same way as subtitles appear on films) – be the deaf person a juror or ‘merely’ a member of the public. Currently the public can watch trials, for all the good it will do them when they cannot see the documents being referred to, or hear if they are deaf. The technology may increase the demand for general accessibility in excess of that which now pertains. The Maxwell trial in fact made both the documentary evidence and the real-time transcription visible to the public on two large screens.
Lest I forget, the taking of depositions almost always involves the use of transcription, whether real-time or otherwise, and is frequently coupled with a video record of the process. Allying the various technologies can easily produce a CD-ROM that plays the picture simultaneously with the words appearing on the screen and which is also instantly searchable. Since the deposing takes place outside the courtroom and in advance of trial, it is up to the parties how they do it. What is not up to the parties is whether and how such evidence can be replayed in court and/or integrated with other presentational devices. The fact that it occurs, and of course we have no such procedure (yet – and I know of no plans to introduce it), is another impetus in the USA for there being mechanisms in court to show and manipulate this kind of information.
Multimedia capture and display facilities
The second ‘heading’ – provision for the display of evidence and other materials in television and computer-generated form, gives rise to the most exciting toys, and excites the most controversy.
Real paper/plans/X-rays At its lowest, technologically, is the projection of documents by television. Literally thousands of courts and litigators have a portable device usually known as an ELMO or a DOAR (depending on the make – there are others, including Wolfvision which is European), which is little more than a camera on a stand which enables a document to be placed flat down and its image viewed on screens in the court. It saves copying and handing round the document, photo, map, or whatever. It is a glorified overhead projector. Of course, there need to be screens to see the thing on – ranging from one single big screen to each juror and the bench and all lawyers’ places having their own monitors, preferably fold-away flat-screen LCDs to save space. Ideally, the monitors need to be able to take a radio or infra-red ‘feed’ put out by the camera, otherwise in a ‘portable’ setting there is wire all over the place (and the ‘behind the scenes’ pictures of the Simpson trial show how not to do this – there were miles of cables snaking all over the place), although RF and IR feeds have their own eavesdropping/interference wrinkles. There also needs to be some form of recorder, preferably to disk, to capture the image ‘for the record’. As I say, this is fairly low-tech stuff, involving no computer wizardry (although it does mean that anything can be so displayed without a ‘viewgraph’ having previously been prepared). Low-tech, that is, unless one of the screens used to project that image is something called a ‘smartboard’.
‘Smartboards’ One of these devices (the one used by the Project actually operates under the tradename Smartboard) is a back-projection unit that can take its source from anything – computer, camera, whatever. Once thus displayed, an electronic marker pen can be used to ‘mark’ the image, or indicate a route taken. That output can be fed to all screens in the court, and a permanent electronic record made of how any given witness marked the document, a record which can be recalled instantly at any time. Thus the efforts of any individual witness can be preserved and recalled for comparison/cross-examination, etc.
An additional feature of the smartboards is that all of the controls for the various gizmos in court can, if it be suitably programmed, be transferred to ‘buttons’ on the same screen, and the technology controlled by touching the screen. It also has a portable keyboard, with infra-red connection for remote, wireless use. Less sophisticated is an electronic whiteboard: any diagram drawn on it will be reproduced on monitors and, again, the image stored away for future use or reference.
Imaged documents Imaged documents are plainly the alternative to the largest source of information, and paper, in the courtroom, and here the plot, and the ramifications, begin to thicken. The technology is not very surprising – in principle each document is scanned twice: once to capture a photograph of it and again to ‘read’ the text in it. In most cases the text element is used only to track down references and find what is relevant; what is displayed is the ‘photograph’. When coupled with zoom and highlighting techniques, or the use of a smartboard, the image can be emphasised or marked, whether by counsel or a witness, but the fundamental purpose is to obviate the need for, and the use of, the paper version of the documents. Time is saved, it is said time and again, in court. Experiments are said to show that jurors are as happy with images as they are with the paper version.
Laurence West-Knights is a barrister and Vice-Chairman of SCL.
