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order that, when the jury retires, the courtroom and the exhibits       [PP90]
in it shall be available to them as if they were in the jury room,
thereby allowing them access to computer equipment and image databases by
that means (Seaman (1993)). As explained above, various search aids (as
yet not finalised) will be provided to the jury so as to enable them to more
effectively retrieve the exhibits that they need.

Such proposals raise interesting questions, including: (i) what is the status
of the software which allows the exhibits to be searched?; (ii) may the
deliberations of the jury be skewed in favour of computer-literate jurors; and
(iii) what types of training and assistance to jurors in how to retrieve
images is acceptable?

There is some theoretical danger in providing jurors with software to search
and retrieve exhibits by various criteria (other than mere exhibit number)
that it could be considered that the jury might go 'beyond an examination and
evaluation of the evidence provided by [the exhibits], and would have had the
purpose of gathering additional evidence' (Kozul v R (1981) 55 ALJR 377, per
Gibbs CJ at 381). Where the only retrieval criteria available through the
software are such neutral matters as exhibit number, witness name or date of
tendering, no such argument could succeed.

The argument that computer-literature jurors might dominate the jury, while
worth consideration, seems less serious than arguments that literate jurors
might have dominated juries when literacy was less common, or (as in most
complex fraud trials today) that the jury is open to domination by numerate
jurors. The provision of a complex and 'user hostile' retrieval program to a
jury as the only means of accessing exhibits would certainly be unfair and
allow computer-literate jurors to dominate, but the correct answer to that
problem is for the judge to ensure that any retrieval mechanisms provided to
the jury are sufficiently simple and 'user friendly' (as we understand is
being done in Western Australia) that no such problems arise.

No matter how simple a computer system may seem to those familiar with
computers, there is no doubt that some jurors will require considerable
assistance before they can use any computerised exhibit retrieval system. It
is not acceptable for there to be some trained intermediary who retires with
the jury to carry out their search requests: a 'thirteenth man' is not
recommended. It would also seem problematic for any person to give instruction
to the jury once evidence had been received in the trial. However, there seems
to be no difficulty in a person giving instruction to the jury after they are
empanelled but before any evidence is received. The appropriate answer would
seem to be that the trial judge should be responsible for ensuring that
appropriate instructions (including written instructions) are given. In the
Rothwells trial, 'although a final decision has not yet been made, the
planning proceeds upon the basis that the jury could be offered the electronic
transcript of a short but interesting criminal trial and a manual' (Seaman
(1993)). We recommend as follows:

   Where imaging technology is used to handle the exhibits in a trial,
   the jury should be allowed access to the computerised database of
   exhibits, and an appropriate retrieval system. The trial judge should
   ensure that the retrieval software provided to the jury is sufficiently
   simple and 'user friendly', so that the jury can effectively
   retrieve the exhibits that it needs, and that there is no undue dominance
   by computer-literate jurors. The trial judge should also be
   responsible for ensuring that appropriate instructions in the       [PP91]
   use of the retrieval software is given to the jury, and in a
   way which does not allow improper access to the jury.
   

Jury access to computerised transcript


The whole transcript is not normally provided to the jury when they retire,
but is now available on a discretionary basis in New South Wales, and its
availability is provided for in Victoria's Crimes (Fraud) Bill 1992, cl 21.
The Trials Working Party (1992) Recommendation (h)(x)(v)(vi)) and Aronson
(1992) Recommendation 14 both recommend that transcript should be available.
If it is so available, then in a complex and lengthy trial it may be
advantageous to make it available in a computerised form, as jurors may
otherwise have extreme difficulty in locating text that they wish to find
among such a large body of transcript.

The main problem with doing so is that it raises all of the concerns discussed
in a more acute form, at least if full free-text retrieval software is made
available to them. If software which only allows retrieval of transcript by
such neutral matters as the name of a witness, or the date of testimony, or an
exhibit number, is provided, then this is unproblematic. However, if the
software allows full boolean and proximity searching for word occurrences and
their combinations, then there is a considerable danger that jurors may draw
naive and incorrect conclusions from searches that they make to attempt to
find every reference to some event, belief, or other coincidence of matters.
The problems of obtaining adequate precision and recall are well known in the
professional literature (see Chapter 2), but are unlikely to be known to
inexperienced users. Blair and Maron (1985) showed that professional lawyers
using a litigation support system made completely erroneous assumptions about
the comprehensiveness of what they were retrieving, so it is unrealistic to
assume that a jury would be more sceptical. The complex and problematic nature
of the effective use of free-text retrieval tools makes the other questions of
dominance by the computer-literate and the problem of adequate training more
serious than in relation to exhibits. Nevertheless, the correct answer is the
same as with exhibits: it should be a matter of the judge's responsibility to
ensure that appropriate transcript retrieval tools, and instruction in their
use is provided to the jury, but considerable care should be taken in
providing full free-text retrieval of transcript.

Steps must be taken to ensure that they jury cannot retrieve from the
transcript any part of the proceedings that were not heard before it. One
incontestable way to do this is by completely removing the text of such parts
of the proceedings from the copy of the computerised transcript provided to
the jury. Alternatively, it is possible to obtain retrieval software which
prevents the jury retrieving any part of that transcript which it should not
see, controlled by appropriate codes in the text, an approach which Seaman J
considers acceptable (Seaman (1993)). We recommend as follows:

   If the jury is provided with access to the full transcript, (as some
   have recommended), then it should be able to access that transcript in
   computerised form (if facilities to do so are otherwise available).
   The trial judge should have the same responsibilities as in relation
   to exhibits, but should exercise considerable caution in approving
   retrieval software for the jury which allows full free-text retrieval
   of transcript. Steps must be taken to remove from the transcript any
   part of the proceedings that were not heard before the jury, or to
   prevent the jury retrieving any part of that transcript.
   



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