Levelling the Scales - Digital Evidence

In the not so distant past all advocacy in the Crown Court was effectively oral; witnesses were examined and cross-examined, documents were exhibited and speeches made. 

There was no difference between how the prosecution and defence cases were presented, other than the quality of the witnesses and the advocacy.  Fluent and articulate witnesses with better memories and greater resilience to challenge give better evidence than those who are more anxious or verbally challenged.  These factors could operate to the disadvantage of both prosecution and defence.  The skill of the advocate was vital in taking a witness through their evidence or dismantling that evidence through cross examination as well as arguing a case in an opening or closing speech.

With the technological changes in how evidence is gathered the position today is markedly different.  Although many cases follow that familiar pattern, most serious cases which are not based upon documentary evidence are now usually heavily reliant upon either CCTV or phone evidence and presented using a mosaic of graphics, schedules and recorded video.

It might be argued that this is a good thing as the consequences are that there is often no significant dispute about what the evidence shows; the issue is how it is to be interpreted.   It is generally accepted that visual imagery has an objective truth: what you see is what you get but it is not quite as simple as that.  The extent to which a police officer could be used as a witness to ‘explain’ what the jury can see was resolved nearly 25 years ago in Attorney General's Reference (No.2 of 2002) in the context of identification evidence, but little or no attention has been focussed upon the extent to which the way apparently objectively ‘true’ material is edited and combined; how it is presented can have a significant effect upon the impression it creates. 

With technology now at the forefront of most serious cases the imbalance between the resources available to the prosecution to achieve the desired effect from electronically gathered and presented evidence, compared to those of the defence, has never been so great and little attention has been given to this huge disparity.  The police usually have a forensic services design studio with the software and hardware to professionally produce material which combines all the evidence in the most effective way to make the point the prosecution seek to make: the combined effect is a multimedia presentation demonstrating the defendant’s guilt.  This is usually presented to the jury via a ‘talking head’ - usually an officer in the case – in the witness box whom prosecution counsel invites to comment as it is played to the jury.

Any objection to such material – the ‘Jury Bundle’- is limited to arguing that any captions or text must be neutrally descriptive and not comment.  The bland justification for them being exhibited is they are ‘working documents’ but given the jury retire with them as a pictorial aide memoir of the prosecution case they carry considerable weight which is usually only counter-balanced by defence counsel’s oral comments in their closing speech.

There is also little scope to cross-examine and indeed it may be unwise to do so as what that police officer can offer in evidence-in-chief by way of opinion is limited and any cross-examination invites that officer to elaborate and start into impermissible opinion.

On the other hand, there is nothing to stop the defence contributing to this visual presentation.  Over the years I have taken some interest in what the defence can do to try to redress the balance.  We have neither the time nor the resources to engage the services of a forensic services design studio pre-trial, and very rarely the sort of comprehensive instructions which might help construct a defence presentation; consequently, the defence’s resources are usually limited to the advocate’s own laptop and such computer skills as they have.  The time may have come when we may have to reconsider the traditional training for advocates and consider whether enhancing counsel’s computer skills should be a necessary addition.  The following are just a few suggestions which one might consider.

In the early days of phone evidence there emerged the ubiquitous mobile phone schedule of call records, sometimes interwoven with other events to create a chronology: we usually receive both in a PDF format.  It is always worth demanding the original Excel file in .xlsx format.  This enables one to easily search, sort and edit the file to be able to produce one’s own documents to reveal or highlight contacts which are otherwise hidden.  I have done this in many trials to create a different impression of phone traffic to the one the prosecution relies upon.  One can also add in events – just like a prosecution Events schedule – which again creates an alternative narrative.  It is also worthwhile spending some time formatting the document; appearance is not everything, but it helps.

Printing the resulting document was an additional problem, but with the increasing use of ‘digital’ evidence this is less of an issue.  According to HMCTS’ plans the intention is to make all jury bundles digital on iPads in the future and they are already tendering for a provider – but do not hold your breath.

Video material can be fairly easily edited on a Mac using the native app ‘Quicktime’ which is effectively part of the operating system but if you are ambitious there is quite a variety of video editing software available for amateurs.  I do not and never have used a PC so I have no experience of PC editing software.  The video files have to be in .mp4 format and Quicktime is pretty basic, but at least you can edit clips to produce your own shorter clips and stitch them together to produce your own edit from several clips.  Editing is a powerful tool to create an impression from raw footage.  By doing so you can, at the very least, demonstrate to a jury that there is more relevant material to watch or another way to look at what they may have been shown.  Finally, it is extremely simple to produce a still image by simply screenshotting the image on the video you wish to preserve.

Google maps can be used to produce an exhibit and it is increasingly common now to use Google Streetview to provide images of locations.  This has many useful features.  By using the ‘See more dates’ bar one can even go back in time to see what the location looked like on different dates or in different seasons as the leaf cover changed and in different years to see if buildings, street furniture etc. may have changed and using the zoom feature one can change the perspective.  A Screenshot captures the image or map to exhibit.

Annotating images is vitally important to create the strongest impression from the raw material, as well as assisting everyone to see what you want them to focus on; it is simpler than trying to describe where, on a map, to look or inviting everyone viewing an image to “look at the person in the black top, no, not that one , the one on their right – I mean left – can you all see the cursor….?”  One can annotate a PDF file using Mac’s native app ‘Preview’ by adding lines, arrows, circles, text etc.  This is especially useful when exhibiting maps, but equally helpful and providing focus and impact to photographic images

I have, on occasion, created diagrams using Preview to illustrate a cross-examination.  For example, in a recent case I created a birds eye image of two people using diagrams of figures I downloaded from the internet to show that if they were standing where the prosecution said they were and turning towards each other in the way the prosecution suggested, then the shotgun pellets fired by the defendant would have hit the opposite side of the victim’s body, not the side where they were actually wounded.  It was possible to convey that verbally, but much harder to follow and much less effective, not least because I could then ask to exhibit the diagram and place it in the digital jury bundle.

It is possible to create more compelling images using PowerPoint to insert animations to captions or other annotations such as locations on maps.  I did this recently to show, using animated ANPR locations and mobile phone cell site locations, the progress of a car containing the relevant people, together with a location they claimed to have visited, to demonstrate, simply and clearly, that their account was obviously true.

None of this can approach the technical sophistication of, for example, the sort of videos the prosecution technical teams produce, complete with colour-coded arrows and circles on the video material as it is played, but it can, and sometimes does, redress the imbalance a little.

It is possible, at least at the Old Bailey, to ask the technical staff to install an HDMI cable to wire your laptop directly into the Court presentation equipment so you can control how you display what you want to display during cross-examination, or examination in chief.

Criminal trials are still heavily reliant upon the oral advocacy and no amount of technical wizardry will make up for lacklustre cross-examination or disguise a hopeless defence case.  On the other hand, there is no reason to cede the right to a degree of visual presentation entirely to the prosecution, given that it is obvious that it helps present a case and the exhibited material carries considerable weight and is all the jury have to remind them of the evidence when they retire.

The same applies to closing speeches; no one knows how much they affect a jury’s assessment of the evidence, although we all like to imagine our oratory can be the turning point in a trial.

All this material, together with ‘edited highlights’ from the judge’s written legal directions, can be displayed during your closing speech.  With a little practice it can be inserted into a PowerPoint presentation which is shown to the jury as you go along.  For my part I feel it is easier this way to get across what I want to say about the judge’s directions as well as the detail I want to explain, and in any case I am far from confident I can orally hold the jury’s attention with just my sparkling oratory.  As we all know from sitting through the presentations of others, a little bit of visual stimulation can keep one awake.

Just make sure that you have exhibited all this material and it is in the digital jury bundle.  In my last trial, after the jury had been out for about a day they sent a note to the judge which said “Could we have a copy of Keleher’s PowerPoint?”.   Prosecution counsel was furious and put far more venom than I considered necessary into their objection, given that a simple ‘No’ was always going to be the answer, but the judge did at least tell the jury that everything I had shown them was to be found in the exhibits and the written directions.