Simon Buchen SC of Forbes Chambers is an experienced trial and appellate lawyer with a practice primarily in criminal law. He is a paradox: as agile with a fountain pen as he is with an iPad. He spoke to Claire O’Neill about his experience with technology in criminal trials.

Claire O’Neill (CO): Are there any moves in the courts or profession towards making jury trials paperless?

Simon Buchen SC (SB): We are starting to see it on an ad hoc basis, but not as part of any general reform. So, for example, in a current document-heavy prosecution in the Supreme Court involving multiple accused, something described as an ‘iPad-type’ device (I think that probably means the authorities still have a curious preference for non-Apple devices) is being used.

CO: Do you think it’s a reform worth advancing?

SB: I do. The idea that we would saddle long-suffering jurors with many folders of documents, having to take them in and out of the jury box every time there’s a break in the proceeding, is clearly undesirable. It would be far more efficient for jurors to be given a tablet (or an iPad) on which they have the complete set of documents tendered in evidence.

But I think there’s another benefit: making the trial process more engaging for jurors. Having a device of that kind, being able to readily scroll through evidence as it’s being adduced, annotating documents as witnesses are giving relevant evidence, are all going to keep jurors more engaged in the trial process. And one of the biggest problems in lengthy, document-heavy trials is keeping the jury interested.

And by the way, you don’t need to confine the exercise to documents. It is conceivable that other forms of evidence, such as video or audio recordings, or maps and diagrams and the like, might also be placed on the device.

Now there are some countervailing factors which might need to be considered, for example, the risk that certain pieces of evidence are given undue salience in the jury’s deliberations. However, there are clear advantages in terms of the jury being engaged in the process and having ready access to the evidence in a portable form.

CO: Save the Amazon?

SB: That as well.

CO: You are known for appearing quite effectively in court with only an iPad. What are the benefits of this, and has it ever failed you?

SB: It hasn’t failed me yet [touches his wooden desk]; the moment that happens, it will be catastrophic. But so far it’s worked very well.

The main benefit is that once you become familiar with using an electronic resource like an iPad, it is much quicker to locate particular documents, or passages in documents, during the course of questioning or argument.

When you start, there is an uncomfortable aspect – the disconcerting sense that you are keeping the Bench waiting while navigating through an electronic file management system. But you do get past that, and you do get to the point where it’s actually faster than turning around and taking a folder from a trolley and going to a tabbed portion.

You can also produce files that are word searchable. So, if a question comes from the Bench or is posed in the evidence and you know in the back of your mind that you’ve seen the operative word somewhere in the brief, you can find the reference almost immediately – a feat you’d never be able to do with a paper brief. And I’m talking about searches occurring at a speed that can be performed mid cross-examination following a particular answer.

Another benefit is that you’re carrying the entire brief of evidence on a portable device. I remember those quaint days when briefs arrived in a manila folder tied with a pink ribbon; carrying a brief into court was something of a flourish. Now we have these hideously large briefs of evidence that are often tens of lever arch folders. It’s simply impossible to carry that amount of material around with you. When I go into court, my iPad will contain every piece of evidence, the complete transcript, all the electronic evidence, and I can access any of this material very quickly. At morning tea, when I’m having coffee with my solicitor or junior and someone has a thought bubble, it takes only a moment to pull up the relevant piece of evidence and test the proposition. So that’s a huge advantage as well. And there’s that point about the Amazon forest.

CO: What particular programs do you use to make it all work from your iPad?

SB: I use a program called PDF Expert, one of a number of different programs on the market which allow you to work effectively with PDF documents and other file formats, including video files. First of all, I reduce all the written material into a PDF format, which is word searchable. That can be done with a good photocopier at chambers.

The program then gives me the versatility to break those documents up, or to merge them together, in the order I choose. So that allows me to reorder the brief in a logical way, but it also allows me to create merged files that will be useful at different stages of the proceeding. For example, I will create a single PDF file of the transcript of an important witness’ evidence, so that with one action I can search through the entirety of their evidence and find a particular answer. I use bookmarking functions to structure the file into ‘examination-inchief’, ‘cross-examination’, etc and to identify key aspects of the evidence, such as evidence in respect of particular counts on the indictment.

In the cross-examination context, there are some other nice functions in the app. I can create cross-examination folders for each witness, which contain all the documents relevant to that witness’s cross examination. Creating subfiles with the key documents extracted, annotated and logically ordered can be a powerful aid to cross-examination.

Another function which is useful is the capacity to duplicate any page, mark it up in the desired way, and then email or share that page with others. It is possible to take a very large PDF file and with just one button, email only those pages upon which I’ve made an annotation. That can be very useful when obtaining instructions.

There is an ‘AI’ button. I have not had the courage to press it for fear the app will pronounce verdicts upon my clients.

CO: Do you find that managing your electronic files in this way takes more or less time than it did marking-up the brief in the old way?

SB: Unquestionably less time. The app allows you to create a personalised menu of markup tools, including highlighting, underlining, strike-throughs, shading, annotations, etc etc. I have developed a colour-coded system – for example, particular colours designate incriminating or exculpatory evidence, inadmissible material, conduct the subject of an offence, and so on. The app also enables perfectly opaque redactions. Marking-up manually is far more time-consuming and, if I now tried to replicate my system, would rapidly descend to an arts and craft lesson.

CO: Can you think of an example of a time where technology was used in a criminal trial in an impressive way?

SB: I started my practice as a Luddite. I’m embarrassed to say there were years when I solely used fountain pens with ever-more exotic inks – burnt umber, peacock blue – without compromise. During a trial early in my practice, an American DNA expert was brought over to give evidence for the prosecution. (The Americans have always been ahead of the game when it comes to the use of technology in the courtroom.) The witness reduced a complex body of expert evidence into a PowerPoint display. I initially found the visual representations somewhat infantile – at one point, the witness used a visual motif of a train. There was reference to something called a ‘caboose’. And I thought, the jury just aren’t going to buy this — but they were spellbound. That was an eye-opening experience.

One thing that is notable is that police investigators are getting better at creating interactive compilations of evidence. For example, interactive displays can be a powerful way to chart the movement of a vehicle of interest at a critical point in the evidence. The display can show the movement of the vehicle on a map, which then cuts periodically into relevant CCTV footage and surveillance images. When the evidence is compiled in this way, it is cogent and compelling. And it becomes very difficult to avoid inferences that potentially ambiguous CCTV footage captured the vehicle in question.

Your readers may have seen an interactive feature in a recent article in the Sydney Morning Herald about the Lehrmann defamation proceeding. It featured a timeline, key pieces of CCTV footage, and an interactive map of a minister’s office, plotting the different paths taken according to the conflicting versions of the two key witnesses. It’s a good example of a lucid and engaging way to bring together different forms of evidence, like CCTV footage, oral testimony, and a map of a particular location of interest. This is something that criminal defence lawyers, among others, should be looking at more seriously.

CO: What do you think about the use of PowerPoint in a closing address?

SB: Visual aids to an oral address, like a PowerPoint display, can be an effective way of emphasising aspects of the submission. It can also be used to clearly communicate the structure of the address to the audience, which is obviously a feature of good advocacy.

Care needs to be taken. For example, problems may arise if a particular juror is unable to comprehend or access the technology being used. You may also need to be on guard for the possibility that the visual representation somehow distorts evidence or gives some piece of evidence undue salience. But there’s no doubt that it can be a valuable aid.

CO: And finally, how should an advocate deal with occasions when the technology fails?

SB: Intone the adage: patience is a virtue. Technology in a courtroom setting often fails. In my experience, it’s rarely the case that it works seamlessly. The court officers are trying to do their best to facilitate the process. Being anything other than patient is likely to reflect poorly upon you as an advocate and potentially your client as well.

CO: It’s lucky that barristers are renowned for their patience.

SB: True. All those virtues we were taught in the Bar course …

CO: Thanks Simon.

SB: It’s my pleasure.