Technology for Justice 2000
The Australian Institute of Judicial Administration Inc
8 - 10 October, Hotel Sofitel, Melbourne
"Using PowerPoint in Charging Juries"
Her Honour Judge Mary Ann Yeats
District Court of Western Australia
During 1999 two events occurred which set the stage for my use of PowerPoint when charging a jury. The first event took place in June of 1999 when the Judges of the District and County Courts of Australia met in Sydney. Included on the program was a presentation by Professor Warren Young concerning work in progress in the New Zealand Law Commission on the project "Juries in Criminal Trials". The Law Commission's ground breaking work involved interviews with jurors following eighteen High Court and thirty District Court trials in New Zealand. From those interviews emerged a number of juror's concerns. One was the difficulty faced by jurors in comprehending and later remembering the judge's directions on the law they must apply. One recommendation of the Law Commission was that judges give jurors a written summary of the law at the end of summing up and present the summary in visual form during the summing up itself.
Those who are familiar with PowerPoint software will know that it is well suited for such a task. PowerPoint can readily provide succinct summaries in visual form which can be displayed for the jury during the summing up; by printing the PowerPoint slides the jury can conveniently be given the summaries in written form at the end of the summing up to take with them into the jury room during deliberations.
It was fortunate that recognition of the potential usefulness of PowerPoint in charging juries coincided in late 1999 with the second important event, the opening of four new high technology "intelligent" courtrooms for use by the District Court of Western Australia during jury trials. These courtrooms are equipped with the latest digital technology and, for my purposes, provided a simple means for bringing PowerPoint technology into use in my charge to the juries.
Developing the PowerPoint Presentation
When the new courtrooms opened at the end of 1999 I enlisted the assistance of an able technical officer from the Ministry of Justice, Mr Brad Vivian who assisted me with the development of my PowerPoint slides. In preparing the slides I was guided by a number of principles:
1. My charge to the jury would remain an oral direction. PowerPoint would merely highlight and summarise aspects of the charge. I advise the jury at the commencement of my charge that it is an oral direction.
2. The PowerPoint slides have been designed in a conservative, attractive format, consistent with their use as a judicial document.
3. The PowerPoint slides should not alter my oral direction to the jury but only enhance the jury's understanding of it.
4. The use of animation or optics or drawings is unsuitable; words alone should appear on the slides.
5. Having words of each dot point emerge on to the screen from the right (and not from the background) created an ambience I considered appropriate for the display of a rule of law.
6. Only legal rules and the elements of offences should be set out on slides. Matters of evidence should be discussed orally but not be part of the PowerPoint presentation.
7. Any discussion of the crown case and defence case should not be included in the PowerPoint slides.
Mr Vivian located a colour copy of the seal of the state of Western Australia for use on the slides. That seal along with the two tones of blue provided a format I considered suitable for a judicial direction of law.
(Slide 1) Mr Vivian prepared a number of slides for me. From those initial slides I have been able to easily prepare slides as needed in numerous trials since February 2000. My collection now numbers seventy six in total.
In Court Presentation
The District Court's four new courtrooms allow projection of the PowerPoint slides on a large drop down screen for the jury. The slides are also displayed on a side screen for members of the public and on monitors in the courtroom for the judge, associate and counsel. My staff has become proficient in setting up my computer and the screens and monitors. There is generally no delay in the trial process.
I find it convenient to control the slide show with my mouse from my lap top computer on the bench. So far that aspect has worked without any problems.
Over the years my charge to the jury has developed so that it includes a number of standard directions given in every trial along with a number of standard directions needed from time to time. Besides this I had developed a number of directions on the legal elements of specific charges. All of these directions had been typed on sheets so that they could be assembled as needed in each trial.
The use of PowerPoint involved no change in my oral directions. My charge to the jury has not changed in form or in content. All I have done is to prepare slides to succinctly summarise the fundamental matters of law in my oral direction. For example my direction on the burden of proof is (slide 4) (words in bold appear on PowerPoint slide):
"There are fundamental rules that apply in every criminal trial and it is important that you bear these in mind as you are about to commence your deliberations. The first of those rules is probably the most fundamental and important rule that applies in every criminal trial the burden of proof in every criminal trial is on the crown and rests upon the crown from the beginning to the end of the trial. During your deliberations you should continually keep in mind that probably the most fundamental and important aspect of the law in a criminal trial is that the crown bears the onus of proving what it alleges. The accused does not have to give evidence and has no obligation to prove anything in this court. Under our law an accused person is presumed to be innocent and unless by your verdict you were to find him guilty.
(Slide 5):
"If he does go into the witness box, as the accused has chosen to do in this case and if he does give evidence which raises any defence or explanation which would tend to exonerate him, it is not for the accused to prove that defence or explanation. The crown must negative it. The crown must prove guilt. The accused does not have to prove innocence."
I have given that direction to every jury in every criminal trial since I commenced sitting as a judge in 1993. We always believe that juries fully understand the burden of proof but it is surprising that occasionally questions arise even in this area. That has been documented by the New Zealand Law Commission. By adding the two PowerPoint slides the main rules on the burden of proof are highlighted as I speak to the jury and then are reinforced by being included in a written summary given to the jury when they retire to deliberate. Since using PowerPoint I have had no questions from a jury concerning the burden of proof.
New Zealand Law Commission research showed that juries had some difficulty comprehending directions on the drawing of inferences. While my oral direction on drawing inferences is a standard direction, I am encouraged that committing the rule to writing has given jurors some chance of remembering the rule and applying it correctly later in the course of their deliberations. This is my direction on inferences (slide 21):
"Now members of the jury, there is no room in a criminal trial for guessing, speculating, or for looking for theories which are not supported by the evidence. However, you may draw inferences from facts which you find. An inference, as you will no doubt appreciate, is simply a logical deduction from a fact or a number of facts.
It is important, however, that you bear in mind this rule; you can only draw an inference adverse to the accused if it is the only reasonable inference open on the facts you find. That means that if there are competing inferences that can be properly be drawn from the established facts, it would not be proper for you to draw an inference against the accused. In the event of any ambiguity in the evidence, or if it be the case that there is more than one reasonable inference which can be drawn, the accused is entitled to the resolution of that ambiguity or the drawing of the inference which is most favourable to him."
PowerPoint is particularly useful in sex cases where the Criminal Code of Western Australia contains statutory definitions of a number of important legal terms such as "consent", "sexual penetration", "deals with" in indecent dealing charges. Slides setting out these legal definitions have proved very useful (slide 22) indecent dealing, (slide 23), (slide 24), (slide 25) sexual penetration, (slide 26) consent.
I have included in the appendices to this paper several directions to juries and the PowerPoint slides which I have prepared to complement the directions. These include a direction on motor vehicle manslaughter with the alternative of dangerous driving causing death and a direction on possession of prohibited drugs with intent to sell or supply explaining the reverse onus as to intent arising from proof of possession of a substantial quantity of a prohibited drug.
Written Directions
From time to time in the past I have provided juries with written directions in complex cases. These often involve a series of propositions or questions to guide them in reaching their decision in an orderly manner. There will still be complicated charges where such written directions will still be needed. But committing written directions to paper always creates problems. Jurors are not selected based on their intellectual capacity or skills in reading. Every time I ask a jury to look at a document during my charge I find that about one third of them lose their place in the document. I lose the jury's attention. Eye contact is lost. Some jury members shuffle and fumble the papers and invariably read while they should be listening.
PowerPoint eliminates those problems. Both the jurors and the judge look at the same words at the same time while the judge is speaking them. Instead of distracting the jury PowerPoint focuses the jury's attention on the matter being discussed. On the next occasion when written directions in the form of a series of questions or propositions is needed, I intend to put each question on a PowerPoint slide so that I keep the jury's attention. They can then use copies of the slides to guide them through their decision making.
Counsel's Response
It is not permissible in Western Australia to speak to jury members after trial to ask them directly whether technology such as the PowerPoint presentation assisted them in their understanding of the law. I have however taken the occasion for the last few months to ask counsel for their reactions. With one exception, both defence counsel and prosecutors have been very positive about the use of PowerPoint. I have had a letter from a crown prosecutor after a difficult trial in March in these terms:
"(we) were extremely impressed with the PowerPoint display. This was the first time I had seen such a procedure undertaken by a judge in a jury trial. It was obvious to me that the jury listened attentively and were clearly assisted by the short summaries of the law as they appeared upon the screen. I also endorse the practice of providing each member of jury with a hard copy of those summaries. The obvious benefits of these tools were reflected in the fact that though this was a trial of some legal complexity, the jury did not submit one question to her Honour requesting legal clarification throughout the three and a half hours of their deliberations. I would strongly endorse a wide use of similar PowerPoint displays by trial judges."
Defence counsel from Victoria appearing in my court commented in July that he was rather impressed, found it helpful and was "sure the jury did". He went on to say "it can only help that the jury can see as well as hear what your Honour says and it must help reinforce their understanding and recall of what your Honour says".
Defence counsel in an April trial said "it does seem to focus the jury's attention and it is a positive thing to keep the jury's attention going". Defence counsel went on to caution that care is needed to ensure that succinct statements of the law are not misleading, a concern I certainly share.
During a trial in June the prosector observed the jury during my charge and noted that the jury was focusing on the slides when I was explaining the law and the elements of the offence and was reading along with my direction. The prosecutor noted his personal experience of finding it helpful to see things visually rather than simply being spoken to.
Defence counsel at a trial in March found PowerPoint very effective in retaining the focus of the jury on the charge I gave.
Both prosecutor and defence counsel agreed in a trial in April that the PowerPoint emphasises the main points in the summing up. Defence counsel found it particularly helpful that the succinct written statement of the fundamental rules of law go with the jury into the jury room.
Defence counsel in a June trial applauded me on using PowerPoint and giving the jury copies of the slides. He had experienced seeing jurors' eyes glaze over during long oral directions and saw PowerPoint as an excellent way of maintaining their attention.
The only negative comment came from a defence counsel during February on the second occasion I used PowerPoint. That lawyer objected because it was a "novel approach". Defence counsel was concerned about "inherent dangers" in giving the written summaries to the jury because the jury might assert my role as the sole arbiter of the law. Neither of those were matters that concerned me about PowerPoint and I proceeded in that case despite counsel's objections.
Since that early objection I have had no other objections. It is certainly necessary to proceed with caution when bringing in new technology. One must always remain alert to unintended consequences and to any possible unfairness that could result. My experience to date has been that my charge to the jury remains unchanged; all I have done is to use technology to increase the juror's ability to understand my charge and to provide them with a succinct written reminder of the key legal principles when they retire to the jury room to commence deliberations. So far my experience has been that this new technology enhances the effectiveness of my charge but it does not in any way alter its proper use.
Future of PowerPoint for Juries
My use of PowerPoint is necessarily limited to the occasions when I sit with a jury in Western Australia's four new high technology courtrooms. The other eight jury courtrooms used by the District Court in Perth do not include technology which allows PowerPoint use. Fortunately the new justice complexes in Fremantle, Rockingham, Busselton, Bunbury and Geraldton have been built with the necessary technology to allow PowerPoint use. Otherwise, on circuit, the technology is unavailable.
There is a growing interest among the legal profession in utilising technology. Several prosecutors have told me they are considering PowerPoint use for their crown opening in a criminal trial. There is an interest generally in having technology available for civil trials. All of these developments indicate we can expect some pressure on the availability of our high technology courts. At this time only one other judge on my court uses PowerPoint. If a number of judges wish to take it up there would not be sufficient courtrooms suitable for its use.
My own experience leads me to believe that PowerPoint will become more widely used in charging juries as familiarity with its benefits and the ease of its use become more widely known. We will need to move towards having all of our courtrooms equipped to enable the benefits of technology to be fully utilised when we communicate with juries.