Tip the Scales

Trial Technology Impact Info by Dean Bennett

November 21st, 2008 Posted in Los Angeles Trial Presentation, Phoenix Trial Presentation, Trial Consultants, Trial Graphics

We got this article through the American Society of Trial Consultants email feed.  It was written by Dean Bennet for News 880am in Canada.  I think you will find it interesting at the very least.

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Technology changing courtrooms, but issues of fairness being raised

http://www.inews880.com/Channels/Reg/CyberCorner/Story.aspx?id=1041041

By Dean Bennett

11/19/2008

Ladies and gentlemen of the jury, have you Twittered a verdict?

It hasn’t yet come to that, but cyber-technology is slowly gaining a foothold in courtrooms with more lawyers relying on PowerPoint presentations, high-tech graphics and various software programs to make their case.

At the same time, issues surrounding judicial fairness and the impact of technology on juries are being raised.

“I think jurors are expecting more technology in the courtroom,” said U.S.-based jury consultant Sonia Chopra.

“Because people see it in their daily jobs, in television and online, they expect to see it in a trial, particularly if it’s a trial of any weight at all,” said Chopra, from Oakland, Calif., who interviewed jurors as part of research at B.C.’s Simon Fraser University.

Years earlier, she said, a litigant who didn’t want to look too slick would eschew a PowerPoint show. “Today, jurors think (no PowerPoint) looks bush and ill-prepared.”

The issue of the impact of the information age on the judicial process moved centre stage earlier this month when the top judge in England publicly wondered if people raised in the point-and-click school could absorb information as jurors from a process steadfastly grounded in the oral tradition.

“Orality is the crucial ingredient of the adversarial system,” said Lord Igor Judge in his remarks at the University of Hertfordshire. “Witnesses speak and answer questions. Counsel speak and address the jury. Judges speak and give directions.

“What will happen to our oral tradition? Should it, will it, be forced to change?”

The results of inattention can be expensive.

In Sydney, Australia, this summer, a $1-million drug trial was scrapped after hearing evidence over three months when it was discovered five of the jurors had been passing the time in the jury box playing the numbers game Sudoku.

Law professor Sanjeev Anand says the system must become more interactive and user-friendly.

“People are learning more visually than they have in the past, but there’s no studies to suggest the young people on juries can’t digest information,” said Anand, with the University of Alberta.

One solution, he said, is to reform paternalistic elements inherent in the justice system. For example, he noted, Canadian jurors are allowed to ask questions during the trial, but judges don’t regularly advise them they can do so.

“We need to make it a more active process,” said Anand.

Chopra agreed, noting that improvements are hampered by a centuries-old legal tradition that some judges are loath to change for fear of setting the wrong precedent.

“The way jurors are expected to process and learn information has been problematic for a long time,” said Chopra.

“We’re not used to just sitting there and being lectured at. I don’t think it has as much to do with being Internet- and technology-savvy as that’s just not the way most human beings learn.”

But David Paciocco, a criminal law professor at the University of Ottawa, says judges need to proceed cautiously because technology also has the ability to unfairly tip the legal playing field.

A judge, he noted, has to consider fairness. He or she must prevent, for example, the scenario of a prosecutor with a big budget dazzling jurors with a PowerPoint show only to be followed by a budget-challenged defendant reading from a yellow legal pad.

“There is always concern about creating an imbalance between the parties in terms of access to technology,” said Paciocco.

“There are some legitimate concerns and issues, but one of the things we could really stand is a very efficient and effective jury study _ but in Canada we’re not allowed to do it because jurors are not entitled to discuss their deliberations.”

Toronto lawyer and legal author Michael Cochrane said until that changes, all reforms are speculative at best.

“No one,” he noted, “is keeping track of what the impact of some of this technology is on jurors.” (Canadian Press, blb)