Mcdonald, Laura W; Tait, David; Gelb, Karen; Rossner, Meredith; Mckimmie, Blake M --- "Digital Evidence in the Jury Room: the Impact of Mobile Technology on the Jury" [2015] CICrimJust 20; (2015) 27(2) Current Issues in Criminal Justice 179

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Digital Evidence in the Jury Room: The Impact of Mobile Technology on the Jury

Laura W McDonald,^[*] David Tait,^[†] Karen Gelb,^[‡] Meredith Rossner^[§] and

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

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) 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.^[††]

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 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).

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?

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 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.

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 years^[‡‡] (SD=15.1 years), and age ranged from 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.

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.

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 (α=.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.^[§§]

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 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.

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.

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 (α=.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.

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.

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 (α=.94). This questionnaire also assessed the group’s verdict with a dichotomous item: guilty, not guilty.

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.

TV viewing per month (number of hours)	Type of television show
TV viewing per month (number of hours)	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

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 (χ²(1)=0.1, p=.74) or after deliberations (χ²(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 (χ²(1)=1.8, p=.41).

	Guilty verdicts
Condition	Pre-deliberation (%)	Post-deliberation (%)
Paper evidence	39.5	40.0
iPad evidence	42.1	35.5

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, η²=.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).

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, η²=.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).

	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)

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

(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.

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.

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 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.

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.

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.

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^[*] 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

^[‡] Research Fellow, Digital Humanities Research Group, Western Sydney University, Locked Bag 1797, Penrith NSW 2751, Australia. Email: k.gelb@westernsydney.edu.au.

^[§] Assistant Professor in Criminology, Law Department, London School of Economics, Houghton Street,

^[**] 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.

^[††] 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.

^[‡‡] The median age for the Victorian population at the 2011 census was 44 years (ABS 2011).

^[§§]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.