The Evolution of Fraud Trials
February 24, 2022
Fraud Trial Evolution? Trial by iPad. Using virtual crime scene simulation. Is this progress? Paper is going. How can practitioners be ahead of the game in this changing world?
In most common law jurisdictions, the right to be tried by a jury of one’s peers is a fundamental right. 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 tested in the courtroom. Potential jurors with prior knowledge of a case may be excluded, and importantly jurors are prohibited from conducting independent research using external sources. Jurors are directed not to speculate but concentrate on the evidence in court. However, there is a fine line, an almost invisible line, between what is speculation, and what is a reasonable inference drawn from evidence. Whilst jurors cannot go on the internet, they do now have the capability to access more evidence using electronic and digital devices they are left alone with in their retirement room.
It used to be the case that the last evidence the juror would hear at a trial was the summing up from the judge. The defence would hope for a balanced recitation of the facts and if that occurred there was nothing more to fear. However, we no longer live in times when a jury of 12 simply walk to their room to deliberate over what they have been informed of in the courtroom. Now jurors walk to their room with tablets, colourful charts, laptops and paper and actual exhibits seized in the case. In the not too distant future jurors will be able to wear headsets allowing them to be transported to the virtual crime scene, allowing them to go wherever they want and wander around the place like Hercule Poirot.
They are now becoming not so much judges of the facts but investigators, carefully analysing digital material in their retirement room and basing guilt or innocence, not necessarily on what was said in the courtroom, but because of something they alone found in the material they were given. The warning from a judge “do not speculate” may be reassuring words heard by a defendant, but in reality allowing a jury to operate in this way will only encourage speculation.
What a juror can now retire with has continued to grow in size. Australian judges for example, as well as judges in other common law countries, increasingly provide jurors now with almost all the evidence to take with them into the jury room,  including interview transcripts, witness statements, photographs, audio recordings and video footage. In the UK jurors are now given written legal directions on the law to take with them and the all-important “route to verdict” document assisting them on how to approach the indictment. The jury are now even given a document entitled “Your legal responsibilities as a juror”; and the best one a document called “Your Guide to Jury Deliberations” providing very helpful (note sarcasm) suggestions on how best they can conduct their discussions in “a smooth and productive way.”
Maybe jurors are being assisted in this way because we are now putting too much responsibility on their shoulders. There is no doubt that jurors are now deliberating for longer. An interesting question now arises. Where in fact is the trial actually taking place? Is it actually in the court room? Or is it now in the Jury Room? Has the foreman now taken the mantle of the Judge? Are the jury now like a group of detectives trying to crack the case?
It was found in a recent study in Canada in September last year that jurors who used tablets were significantly more likely to convict than jurors deliberating with paper. The study also demonstrated that jurors who used tablets found the prosecutor to be more credible, more trustworthy and reliable; than those prosecutors providing paper to a jury. The study raised the real concern that providing juries with evidence on tablets, which may be a more intensive or memorable medium, could undermine the fairness of the trial by increasing focus on and response to the prosecution evidence. The Canadian study concluded “one thing is clear: if the results of this study were to hold for real-world trials, defendants (at least those who are not presenting any evidence of their own) should strongly prefer deliberation using paper evidence rather than evidence presented via tablet.”
What surely needs to end in “tablet cases” is this “jury impression” that the tablet is owned by the Prosecution. This recent Canadian study is a stark warning to the Defence. If we as Defence advocates allow most of the evidence on the tablet to contain prosecution material, the jury will perceive it to be property of the Crown. And we cannot allow for a situation where we have a jury wrongly finding guilt, not because of an evidentially strong case, but because of a persuasive professional prosecution electronic presentation.
It is not surprising that the Crown Prosecution Service will soon announce a drive to introduce more tablets in trials. There will be pilot this year where iPads will be used in court-centres around the UK. The prosecution understand the benefits of this device and the Canadian study would confirm this to be accurate.
The Prosecution know that the colour of the images on tablets, the tactility of the medium, or the image on the screen adds extra veracity to the evidence. Barristers like the sound of their own voices but a single picture can say a thousand words.
What is clear now is that Defence teams must engage at an early stage and recognise the importance of contributing to material on these tablets. New Zealand recently introduced a protocol to be used by counsel and the courts which encouraged and facilitated the use of their “electronic casebooks” for civil cases in the High Court, Court of Appeal and Supreme Court.  This protocol stresses the index on the tablet is very important. The iPad works best if it is divided into sections just like a physical bundle. Within each divider the contents are listed as individual items and paginated. The index becomes the key way for the jury to navigate their way around the bundle, as it is hyperlinked to the contents.
In order for this to work the Defence must trust and engage with the independent contracted technical team responsible for the tablet and its contents. The Defence must make their mark on the tablet by introducing defence material and ensure the jury understand it has been put there by the Defence. This is not the property of the prosecution. Not just including defence agreed facts or a brightly coloured visual aid, but in complex cases you can include, in order, those documents you alluded to during your cross examination of a particular prosecution witness; or those documents you alluded to during your defendant’s evidence in chief; or including those documents you alluded to during your defence counsel’s closing speech. All documents can be conveniently grouped in the order and placed together in well-marked defence sections within the index. This importantly allows the jury to again follow your argument or your line of thought and your defence approach to the case whilst in retirement. It allows the defence to have the last word.
It is important to understand that the independent contracted technical teams, such as Evidential in Manchester, are appointed by the courts to assist with iPad presentation and are very much independent. They are not affiliated to the prosecution or the defence. Such companies regularly sign non- disclosure agreements giving peace of mind to the defence regarding defence sensitive material. We do not have, unlike in the United States, Trial Consultants employed by either the Prosecution or the Defence for the visual presentation of evidence; although we are slowly heading in this direction.
Because they are independent the defence should not view them with suspicion but actively engage with them. Invite them to a professional conference and address how best you can visually present evidence and in what order during a speech or a cross examination. Discuss the all-important content of the index or the use of hyperlinks. Find ways of making something very dull look interesting or memorable and give the jury the tools to later reconsider your defence in their retirement room.
The Canadian study was right to conclude that defendants would be right to strongly prefer jury deliberation using paper rather than evidence presented via tablet. But this does not apply when defence teams actively engage and present evidence of their own on such devices. Tablets are not a prosecution tool but a device which can assist the defence in the future if utilised properly.
 Universal Declaration of Human Rights, GA Res 217A (III), UNGAOR, 3rd Sess, Supp No 13, UN Doc A/810 (1948).
 Daniel William Bell, “Juror Misconduct and the Internet,” Am J Crim L 38 (2010) at 81
 New South Wales Law Reform Commission, Report 136: Jury Directions in Criminal Trials (Sydeny, Australia: NSW Law Reform Commission, 2012).
 Les Presses de L’Universite d’Ottawa: Tablets in the Jury Room: Enhancing Performance while Undermining Fairness? Chapter Author(s): David Tait and Meredith Rossner
 SENIOR COURTS CIVIL ELECTRONIC DOCUMENT PROTOCOL 2019 16 September 2021