Technology in the courtroom: challenges with presenting children’s evidence

ABSTRACT

Legislation permits or requires the use of audio-visual recordings and closed-circuit television where child witnesses give evidence in certain matters. Since its introduction, problems with the technology have been reported, such as poor audio-visual quality and connectivity issues, causing trial delays and exacerbating witness anxiety. This study analyses the perceptions of 18 professionals (n = 18) across 5 Australian jurisdictions (Queensland, the Northern Territory, the Australian Capital Territory, South Australia and Western Australia) who regularly work with the technology. We used non-directive prompts to determine what problems (if any) still exist in Australian courtrooms, the cause and impact of these problems, and potential solutions. Key themes emerged in the analysis. Problems were still commonplace, which included operator error, quality of the recordings, and issues with the recording technology and devices. The detrimental impacts of these problems included added stress to court employees and witnesses, extended and disrupted trial proceedings, poor quality evidence, and added costs of fixing problems. Tangible recommendations for change were provided by the participants, and the overall findings and their implications were discussed.

KEYWORDS:

• Audio-visual
• children; courtroom technology
• evidence
• pre-recording; vulnerable witness

Introduction

Criminal matters involving vulnerable witnesses are challenging when it comes to evidence. The process of recounting minutiae about traumatic experiences is well-known to be stressful and anxiety-inducing, particularly when there are long delays since the offence occurred and multiple interviews with different professionals (Davies et al., 2004; Plotnikoff & Woolfson, 2009; Powell, 2005; Powell & Wright, 2009; Powell et al., 2016). Since the 1990s in Australia, legislation has permitted, or required, the use of audio-visual (AV) recordings (and other protections) where vulnerable or affected witnesses (largely children) are giving evidence in certain matters (see Evidence Act, 1977 (Qld) ss 21A, 21AI-AO; Evidence Act, 1929 (SA) s 13A; Evidence Act, 1958 (Vic); Criminal Procedure Act, 2009 (Vic) s 368; Evidence Act, 1906 (WA) s 106HB; Evidence Act, 2001 (Tas); Evidence (Children and Special Witnesses) Act, 2001 (Tas); Criminal Procedure Act, 1986 (NSW); Evidence (Miscellaneous Provisions) Act, 1991 (NSW), Div 4.3.3; Evidence (Audio and Audio Visual Links) Act, 1998 (NSW); Evidence (Miscellaneous Provisions) Act, 1991 (ACT); Evidence Act, 1939 (NT); Sexual Offences (Evidence and Procedure) Act, 1983 (NT); Cossins, 2010; Cossins & Goodman-Delahunty, 2017; Richards, 2009). Specifically, child complainants’ interviews with police are recorded and later played back in court as evidence-in-chief. This provision was made to minimise the distress experienced, or likely to be experienced, from repeating the account, and to preserve the statement early, thereby promoting the efficient administration of justice. When evidence is reused, fewer interviews need to be conducted (Richards, 2009).

Technology has facilitated the evidential process involving children and has been found to have many advantages. Closed-circuit television (CCTV) or audio-visual (AV) links operate in real-time and allow witnesses to give their evidence during cross examination ‘live’ from a remote room and separate from the judge, jury and defendant. Both CCTV and AV links have been shown to improve witness engagement because the evidence can be taken closer in time to the incident(s) and complainants feel safer being separated from the accused (Powell et al., 2016). Studies have found that children prefer giving testimony by AV link and are ‘significantly less unhappy, more audible and more forthcoming’ (Davies & Noon, 1991) and less likely to cry, feel fearful or perceive that the trial was unfair (Legg & Song, 2020; Mulcahy, 2008; Murray, 1995). From another perspective, in criminal jury trials, testimony by AV link or CCTV can improve the jury’s ability to see the accused’s face and his or her facial expressions, better enabling assessment of demeanour (Tait et al., 2017). One study has found that where a remote witness suite was designed like an ‘immersive pod’, the quality of communication was no different from in-person communication (Tait & Tay, 2019). From an administration of justice perspective, courts have recognised that the use of AV links in hearings provide significant savings in terms of time, costs and convenience (see, for example, 2000 FCA 1261, [25] (Katz J); Versace v Monty [2001] FCA 1454, [16] (Tamberlin J) discussed in Legg & Song, 2020). In Australia, CCTV and AV links are particularly useful in mitigating the difficulties posed by the country’s vast geography (Wallace, 2008).

As with any intervention, however, special measures are no panacea. For the benefits of technology-facilitated evidence to be realised, the technology needs to work effectively. Despite the many reported benefits of courtroom technology, problems have also been persistently reported. Generally, juries may perceive children testifying via CCTV as less accurate, honest and credible than children who give their evidence live in court (Burrows & Powell, 2014c; Powell et al., 2016). This is exacerbated when there are technological issues; which make it difficult for juries to assess witness demeanour and can therefore contribute to unfairness (Legg & Song, 2020). Technological issues reported in prior studies include difficulties playing back evidence (particularly tapes, although those are generally not used now), poor AV quality (due to connections dropping out, freezing, or unsynchronised audio and video), inadequate configuration of room set up, and network failures (Cashmore & Trimboli, 2005; Donoghue, 2017; Kashyap et al., 2018; McKay, 2020; Plotnikoff & Woolfson, 2009; Powell & Wright, 2009; Powell et al., 2016; Rowden & Wallace, 2019). Even nowadays with technological advancements, these remain persistent issues (Legg & Song, 2020). There is plentiful evidence in the form of case law and courtroom transcripts demonstrating the impact of technological issues in the courtroom (McKay, 2020).

More fundamentally, even post-pandemic, the infrastructure or platforms used by courts around Australia varies. A recent study noted Microsoft Teams, Cisco Webex, Zoom, Skype for Business, and other in-house software. This diversity caused confusion, especially as formal guidance on protocols was generally lacking (Legg & Song, 2020; see also Productivity Commission, 2014). Because technology is necessarily two-sided, in the sense that it must work for both parties connecting, resource disparities on one side mean that problems are more likely, if not certain, to arise. All participants need to have good enough bandwidth and technology, and if one participant does not have that, it results in ‘digital exclusion' (Legg & Song, 2020). For example, in regional areas, studies have demonstrated that stable internet is not always guaranteed (Ryan et al., 2020). When connection is lost, it is generally disruptive but, more problematically, can cause information to be missed and are another source of unfairness.

Technology failures can also lead to trial delays. Complainants become more stressed and anxious as they are kept waiting, and are required to attend multiple recording sessions or make unexpected travel to access appropriate facilities (Eastwood & Patton, 2002; Eastwood et al., 2006; Hamlyn et al., 2004; Powell & Wright, 2009; Powell et al., 2016). A report by the Victorian Law Reform Commission found that, despite legislative provision for the use of CCTV, child witnesses were often required to give their evidence in-person anyway (Friedman & Jones, 2005). These issues have not been limited to Australia. For example, in a pilot of technology in the First Tier Tribunal in the UK, although the results were largely positive, issues still arose in relation to the requirements of the hardware and software, light interfering with the quality of the video, and overlapping speech (Fielding et al., 2020; Rossner & McCurdy, 2018).

Since the COVID-19 pandemic, remote evidence has become more routine across a range of matters, not just those involving vulnerable witnesses (Legg & Song, 2020; Wallace & Laster, 2021). Thus, it may well be that adaptions have been made to accommodate operational errors in implementing special measures with child complainants and that problems are no longer commonplace. Little research has been conducted to determine this although it has been emphasised that the experience of users must be understood (Legg & Song, 2020), what has been under-researched is how the problems are interpreted and experienced by those who are responsible for administering the technology. The focus of prior trial evaluation work has been the efficacy of interviewing/questioning techniques and whether the special measures are being used at all (see, for example, Burrows & Powell, 2014a; 2014b; 2014c; Cashmore & De Haas, 1992; Cossins, 2006). When recommendations related to technological failures have been made, they have been one small part of a broader focus of reform and have thus been framed at a high level of generality. For example, professionals should ‘monitor’ the frequency of technological problems as part of the overall program for maintaining and upgrading equipment, and professionals should check that all equipment is ‘working satisfactorily’ and provide proper training for the staff (Cashmore & Trimboli, 2005; 2006; Plotnikoff & Woolfson, 2009; Powell et al., 2016).

In sum, given the sharp increase in how reliant courtrooms have become on technology since the COVID-19 pandemic, and more generally in the modern twenty-first century environment, there is a pressing need to understand if problems with technology still exist in Australian courtrooms, and if so, precisely what is their cause and how can they be resolved. These questions may helpfully be analysed by reference to procedural justice theory, particularly the idea that there is inherent value in due process being followed. That is, fairness of procedure engenders greater faith in the justice system than merely a favourable outcome (Crummey, 2020; Tyler et al., 1989). Specifically, detailed feedback is required from those who operate the systems during criminal trials involving child complainants. The aim of the current study was to obtain and analyse such feedback through in-depth qualitative interviews with a range of stakeholders who work regularly with the technology in these trials. The experience of witnesses was not within the scope of this work.

Method

Participants

Professionals who had regular experience with the use of technology at all stages of the evidence-giving process were invited to participate. That is, the study included police officers and child psychologists who conducted the very first interview with the witness, to court staff who play back the interviews in court, to IT-specific staff who manage the technology. Recruitment involved contacting executives at court registries or organisations in Queensland, the Northern Territory, the Australian Capital Territory, South Australia and Western Australia, who then forwarded our information sheet about the study, ethical approval and consent form to the appropriate individuals. The individual would then contact the interviewer directly and arrange for a time to conduct the interview. The response rate was high. Only three professionals did not reply affirmatively to the invitation to participate, and of those who agreed, only one person (a Judge’s Associate) had to pull out for an unknown reason.

The final sample included 18 professionals (14 females, 4 males) from five Australian jurisdictions (Queensland, South Australia, the Australian Capital Territory, Western Australia and the Northern Territory). Their roles were heterogenous and included Judges’ Associates (N = 3), court technology officers (N = 2), court IT staff (N = 2), a police officer (N = 1), child protection workers (N = 2) and court registrars and administrative staff (N = 8). The number of years that each professional had been in his or her role varied greatly, but all expressed a strong familiarity with the use of technology in courtrooms or the judicial process. The final sample size was determined by data saturation, that is, when no new information was being obtained about the topics of inquiry (see Sim & Wright, 2000).

The study was approved by the Griffith University Human Research Ethics Committee (University Ref No: 2018/488). To preserve the anonymity of the professionals, particularly given that some professionals were the only person in their role, only broad descriptors are used in the results and no further demographic information is provided.

Procedure

To assist their engagement, the professionals were allowed to participate in their interview in various ways: by video conference, telephone or by providing a written response. Most professionals (N = 15) opted for, and were interviewed via video conferencing technology. The remainder (N = 3) elected to provide written responses only. To meet the researchers’ ethical obligations, each professional was instructed not to reveal any identifying case information.

Interviews were conducted by two different researchers from September 2018 to February 2022 and ranged in duration from 15 to 42 min (M = 31 min). Interviewer 1 conducted 7 interviews and Interviewer 2 completed 11 interviews. A standard list of questions was used. Professionals were asked to describe (a) their role, (b) the nature (if any) of any problems that have occurred while collecting/recording a child’s evidence, (c) the impact of technological difficulties on them as an employee and on child witnesses’ evidence, and (d) practical recommendations for how these types of issues could be prevented in the future. The questions devised and the recursive, conversational style of interviewing allowed participants to voice their perspectives, relay experiences across various contexts and suggest appropriate courses of action. The researcher played a passive role in the interviews, asking only broad open-ended follow-up questions.

Data management and analysis

All interviews were audio recorded, transcribed verbatim, double-checked for accuracy, and de-identified. Initially, each transcript was subjected to open coding (Strauss & Corbin, 1990), which involved a line-by-line analysis of the transcripts (i.e., reduction) and identification of concepts within statements which can be described in terms of their possible meaning. Statements with similar concepts were thus grouped together. The transcripts were then re-examined for statements that supported the identified categories. Identified concepts and categories (and sub-categories) were then grouped according to core themes. Thus, the core themes identified helped to reduce the large volume of data into meaningful and parsimonious units of analysis (see Miles & Huberman, 1984). Quotations provided to illustrate the results of this study have undergone grammatical correction where necessary, and any potentially identifying details have been removed.

Results

All but three of the professionals reported experiencing recurring difficulties with technology. The others expressed an overall positive experience with technology and the associated benefits to trial process, nonetheless one of these professionals did express a persistent nervousness:

We’ve never had [the proper recording] not work in the actual courtroom. I don’t like saying it aloud because I don’t want to jinx myself. (Deputy Registrar)

In the remainder of this section, we present the findings related to technological problems, the impact of these and recommendations for improvement.

Challenges and problems in the use of courtroom technology

Two professionals described their experience with DVD playback systems; however, we focus the results solely on contemporaneous technology still largely in use. In this section, we address the technology-related problems that arose during the use of CCTV, video link or pre-recorded evidence.

Three broad types of problems emerged: operator error, quality of the recordings, and issues with the recording technology and devices. The themes were evident across all jurisdictions, and in both regional and remote courthouses. Each theme is now described in turn.

Operator error

The most basic problem type was difficulty directly caused by the person operating the technology. Professionals who worked in the courts, such as judges’ associates, registrars and court technology officers recounted, with respect to both live video link and pre-recorded evidence, many examples of these types of problems. These included selecting the wrong screen to record, failing to stop the recording when the session was complete, not connecting to the correct remote witness room, and forgetting to check the recording after it had been saved to the content server. A court technology officer gave an example of associates not knowing that there was a slight delay between pressing the record button and the recording signal appearing, such that they would get ‘trigger happy’ and cause the system to freeze.

I know we had one associate who was quite new and sometimes when somebody’s sick we have associates that sit in for other judges and I think she was just too scared to say anything to the judge that she pressed the wrong button and she just kept recording in split screens and hoping for the best. (Court Technology Officer)

The professionals who conducted videorecorded interviews with children during the investigative stage (i.e., the police officer and child protection workers) gave examples of mistakenly putting an object (e.g., sunglasses) down on the table and bumping the equipment and accidentally switching it off, or children finding the recording device and switching it off without the interviewer realising.

Irrespective of the kind of professional using the technology or nature of the error encountered, the causes attributed to the problem were insufficient competence in knowing how to trouble shoot the equipment (due to inconsistent, poor, or a complete lack of, staff training) and lack of dedicated IT or support staff (especially in regional or remote courthouses) to call on for instruction. The need for support and high familiarity with the procedures was particularly important given that the staff are operating the technology under great time pressure; it was central to their day-to-day job and the technology did not appear very user-friendly or intuitive.

What I do as a registrar here is probably 10 to 15 different people in [a capital city court] separately. (Deputy Registrar)

Perceived inadequate training was not particular to those staff who operated the systems. One professional expressed frustration at a lack of ‘buy-in’ from the judges using the technology, and that some judges wanted the devices to function or perform to suit their needs, such as displaying larger or more detailed pictures, without appreciating their limits.

You can’t actually make everything in the projection really detailed but for some reason judges insist on having it. An extra camera and picture unit would have to be installed. That adds more cost and even so, there are limits. I just get the vibe that judges are not the least bit interested in understanding the technology. (Court AV Services (IC&T) Manager)

Poor quality video link or pre-recording facilities

The second type of problem which was commonly raised (N = 12 participants) relates to the video link or recording quality, as determined by the sophistication of the recording equipment or its set-up. An AV systems analyst that we interviewed sub-divided this category into two subtypes: (a) ‘first-level faults’ (e.g., camera or microphone not working properly) meaning easily fixable problems that can be detected when the video link or pre-recording is being set up and tested, and (b) ‘second-level faults’, referring to inherent structural problems with the equipment that are not imminently fixable.

Most of the professionals described problems that fell into the second-level fault category. These included poor lighting in the witness room; inappropriate camera positioning that could not be adjusted; audio and visual components being out of sync; and echoes and excessive background noise. The police officer noted difficulties associated with handheld or movable equipment, such as when a camera falls out of position and cuts the witness’ head out of frame, or where a battery runs out of charge part way through a recording. Several professionals reported having to extensively troubleshoot a set-up while a child witness was present in the room.

This poor witness came into the room, the camera was zoomed out and you could see the whole room with some boxes stacked up in the corner and you could see the desk she was sitting at. She was right in the back of the room so the judge said to the court officer who was assisting the witness, ‘Can you move the desk forward so the witness can move forward?’ So, the witness and the court officer had to physically pick up the desk and move it closer to the camera and then the witness had to go and sit down and ask whether it was okay. I thought it was highly inappropriate. (Acting Court Technology Officer)

Issues with the recording technology

The third type of problem, which is least within the professionals’ control, can be described as systemic issues with the technology. This problem category included: incompatible or older systems (e.g., file formats being incompatible such that courtrooms cannot connect), equipment malfunctions, out-of-date software, insufficient connections which can only support a certain number of people at the same time, files becoming corrupted, and system crashes.

Network outages or entire system crashes were reported to be rare, but when they did occur, the consequences were severe. One professional described the centralised recording system being ‘at the mercy’ of the [National Broadband Network], and this was exacerbated in regional and remote courthouses, particularly in jurisdictions that experienced extreme weather patterns. Professionals with experience in those areas noted that equipment was generally older, and the setup was poor, due to limited resourcing compared to what central courts in the bigger cities would receive. Sometimes the technology in remote areas was similar to that for cities but was not robust enough to deal with the harsher environmental conditions in those areas.

Thousands will get spent on technology for it not to work because a bird has eaten the line. That’s happened quite a number of times. (Registrar in remote area)

Importantly, there was variability in experience, even within city areas. One jurisdiction was unique in having a specialist unit which manages all aspects of child witness evidence. The system and technology used in that unit were reported to be highly developed. It was based around a centralised recorder where all recordings are saved remotely to one device, a backup is taken in case of system failure, and a single on-site technician manages the recordings and sends electronic files of these recordings to other courthouses via upload to their local hard drives. Professionals who worked with this system (N = 3) expressed high levels of satisfaction with both the technology and speed of troubleshooting.

Detrimental impacts of technology problems

A large component of the interviews with the professionals focused on the negative impact of the technological problems on the stakeholders who worked within the criminal justice process. Here we noted considerable variability in experiences depending on the expertise of the court staff and how well the systems were resourced (i.e., the detrimental impact seemed greater in regional and remote courthouses where internet problems were more common). Court staff who bore a more general workload, such as registrars, seemed more resigned to the stresses associated with technology problems, whereas specialised IT or AV staff expressed a proactive desire to fix the issue so it would not be long-lasting.

Overall, the detrimental impacts of technology problems could be divided into four interrelated subthemes; added stress to court employees and witnesses, extended and disrupted trial proceedings, poor quality evidence, and added costs of fixing problems with pre-recorded evidence. Each of these sub-themes is now described in turn.

Added stress to court employees and witnesses

The most common impact of malfunctioning technology (reported by 14 of the professionals) was stress: stress both to the staff operating (or fixing) the technology and the witnesses. All professionals that worked in the court (whether as an associate, registrar, or IT specialist) described being constantly worried that something would go wrong with the technology, and that when it did, it was universally described as devastating. Indeed, two of the three judges’ associates that were interviewed described the realisation that evidence had not been recorded as ‘the worst thing that could ever happen’ to them.

Technology in our courtrooms is one of our greatest fears, and one of our biggest bugbears. Acting Registrar

I probably speak for everyone when I say that pre-recordings are probably the most stressful sort of hearing that you can get. If things don’t go to plan, it’s the child that suffers. (Judge’s Associate)

I always say to new associates that a pre-recording is an associate’s worst nightmare. (Judge’s Associate)

The low confidence and high anxiety around the use of technology were exemplified by the fact that these emotions were aroused any time technology was used and not just when it went wrong. Technology was reported by some to make them feel ‘very panicky’.

One judge’s associate described her first pre-recording as a particularly traumatic experience and a ‘complete disaster’. A witness who had been flown in from a remote location wanted to complete giving her evidence in one sitting so the plan was to work until around 5:30 pm in the evening. The witness was only about 15 years old and relaying what happened ‘was a huge deal for her’ emotionally. The associate described that the equipment testing went fine but when she went to check the recordings, ‘it wouldn’t play at all, and yet when you looked on the disc, you could see it had been recorded but it just wouldn’t play’. The evidence could ultimately be salvaged by sending the disc to an external company who extracted the data, but the stress of the situation took a heavy toll on the associate:

It was 7 o’clock at night and I was just in tears because I felt bad for the poor witness. By the end of [the questioning] she was an emotional wreck, she was crying and I just thought ‘My god, this hasn’t worked. She’s gone through a whole day’s worth of evidence and it’s for nothing’. (Judge’s Associate)

A particular reason for this stress was the belief of court staff that the success or failure of the technology, and by extension the whole trial, fell on their shoulders. They used words to describe their recollections that indicated shame, incompetence, and frustration. Five professionals (both court and IT staff) expressed frustration that all problems looked (to others) like operator error, even if it was a fault inherent in the technology.

You’ve got 12 jurors staring at you and a judge breathing down your neck. You’re under a lot of pressure to make it look like it’s all working without drawing any attention to yourself. (Acting Court Technology Officer)

I would say 95 per cent of the time it’s not operator error, and it’s frustrating because nobody is listening to you, and you just feel helpless because you’ve got the ‘powers that be’ telling you that it’s not their problem. It’s just this constant merry-go-round where nobody is taking responsibility. (Judge’s Associate)

The professional who described a lack of ‘buy-in’ from the judges said, ‘it almost seems like it’s us and them’, but ‘for the most part [the judges] are reasonably patient’. Another professional (a court registrar) said that judges are ‘very understanding’ of technology issues, but nonetheless felt that technology issues reflected poorly on the court and made staff look ‘incompetent’.

Embarrassment and shame were paramount, but the essence of the professionals’ distress was ultimately not about how they were perceived, but a sense of wrongdoing for the witness. The professionals understood the importance to victims of telling their story and being heard while simultaneously knowing how difficult it was for them to speak out. Having to stop a witness during that process and call them back to give evidence again was seen as the worst part of their job, albeit unavoidable. The professionals felt a sense of guilt for contributing to that distress even when the equipment failure was beyond their control.

It’s from the judge all the way down to the support staff, and if we have a problem with affected child witnesses it’s like, oh my god panic stations. But we’ve learnt to live with it because it’s just characteristic of the job. (Manager, AV Services)

You’ve got these vulnerable children that are not only having to recount the evidence once, but twice. They’ve got to go through the same rigamarole, the same humiliation, the same questions. It’s just devastating for everyone concerned. (Judge’s Associate)

The stress and anxiety caused by technology problems were seen to be widespread, affecting parents and support personnel as well as court staff and witnesses.

Extended and disrupted trial proceedings

When technological problems were great enough to impact the usefulness of the evidence, they led to costly delays in trial proceedings, which were sometimes profound. One professional recalled a matter involving a dozen child witnesses, all Indigenous children, who had been scheduled to give pre-recorded evidence in their hometown. There were ‘huge technical issues’ right from the start such that the matter had to be aborted on day two and technicians had to be flown in from the city. It transpired that the problem was a virus in the system caused by the associate pressing an incorrect sequence of buttons on the user interface. Two registrars who worked in regional courthouses described similar experiences.

Three professionals (two court staff and one child protection worker) suggested that when technological problems interrupted trial proceedings it also affected jury decision making because the witness’ evidence seemed less ‘real’ or believable. Poorer quality evidence increases jury deliberation, and interruptions to trial process can detract from the gravity of the situation and undermine the significance of the witness’ testimony.

I suppose it’s a bit like watching a dramatic movie. You’re getting so involved in it and all of a sudden, somebody knocks on the door, and you stop the movie. You’ve lost your train of thought, you lose the impact of what is happening on the screen, your emotions just completely fall away, and you become detached from it. (Acting Court Technology Officer)

Poor quality evidence

Four professionals noted how technological difficulties caused by ‘second-level faults’ could impact the quality of the evidence. A judge’s associate recalled audio becoming ‘impossible’ to understand because the video link connection was breaking up so badly. Another professional described a recording used in a trial that was so poor that everyone in the courtroom had to wear headsets to hear it.

It’s a nightmare for transcribers, and all you get on the transcript is ‘indistinctive’. (Judge’s Associate)

Two professionals described how the legislative requirements in their state were both a help and a hindrance. Having consistent and clear standards for evidence was only good if they could practically be achieved with the available technology. For example, a child protection worker described how a police record of interview (the child’s evidence-in-chief) was deemed inadmissible because the camera angle changed during the session causing the witness’s face to be obscured. One professional expressed concern at the lack of direction or consistency in standards for pre-recorded or video link evidence, especially where third parties are involved in the recording, such as witness support workers.

Poor quality evidence and trial delays coincided when evidence was not accepted due to quality concerns. A court technology officer gave an example of a trial having to be aborted because the visual quality of the evidence was so poor that the judge would not accept it. The witness had been giving evidence via video link from a small, regional police station. The trial was relisted, and counsel was asked to arrange for the witness to give evidence from a venue either closer to or in a city, where the video link facilities were better. The disruption was devastating for all involved.

Added trial costs associated with fixing problems with pre-recorded evidence

One professional described the monetary costs associated with salvaging poor-quality evidence, which was the preferred course of action before having to call a witness back. This may involve digitally enhancing the picture or recording, but the professional, an acting court technology officer, described it as quite expensive.

In a non-monetary sense, a registrar described the burden of additional administrative work where technological errors arise. She gave an example where a recording was downloaded from the central content server and burnt on to a disc to be sent out to the Director of Public Prosecutions, but the disc was not tested. It transpired that the file would not play, so the prosecutor requested a working copy. Because there is strict court guidance on how long recordings can be stored on the system and who can access copies of the files at any given time (for privacy, confidentiality, and security reasons), the recording had been deleted off the content server. The registrar described how she had to ‘bother the judge for another order, even though it was a technology issue’, so that the evidence could be re-uploaded, enabling it to be burned to the disc again.

Similarly, the police officer recounted the consequences of trying to fix a recording where the audio and visual elements were out of sync. The investigating officer had to locate an external expert to correct it and the prescribed interviewer had to complete an additional statement explaining the incident (how the device was used and why the fault occurred), which was used in court to argue that the evidence should be admissible despite it not complying with legislative standards. Significantly in that case, the victim ‘would not have coped with giving oral evidence in court’ and she even withdrew because of her own mental welfare, so the importance of the pre-recording was heightened.

A senior registrar noted that the added burden associated with having to fix technology-related problems often required staff to stay beyond ordinary working hours, which added to the pressures of maintaining work-life balance. Rescheduling evidence—involving booking additional flights, accommodation and finding spare time in the court timetable—was a stressful and time-consuming task.

Recommendations to avoid or fix technology-related issues

All except one professional offered tangible recommendations for change to prevent or address the technological problems they experienced. These fell into two broad categories: making improvements to the technology itself or the environment in which the technology was used, and bolstering the skills and ability of the people using the technology. Each of these is discussed in turn.

Technology-oriented solutions

Five professionals emphasised the need for dedicated remote witness rooms during video links or pre-recordings, which were fitted with proper acoustics and lighting, and the capability to adjust the camera angle and control the recording system from outside the remote witness room. Adjusting camera angle was deemed particularly important in jurisdictions with tight legislated standards around admissibility of child evidence. The concern was that child witnesses are more likely than adults to fidget, have their hair falling over their face or try to hide from view (e.g., crawl under the table). Equivalent quality control of evidence, regardless of the location or how witness stress was displayed, was deemed an essential right.

Two professionals suggested a need for complete reconfiguration of rooms, enabling a better compromise between a ‘child-friendly’, calming context, and one that maximised audio and visual quality. They advised that the equipment itself needs to be unobtrusive so that it could not be unintentionally knocked or affect the dynamic within the interview. Some of the existing arrangements were particularly concerning.

The table was almost up to [the child witness’] chin so they had to sit him on a phone book to raise him up. (Judge’s Associate)

While purpose-built set-ups are costly (especially in remote areas with extreme weather events), professionals perceived that the savings associated with avoiding downstream problems would outweigh the initial outlay.

If you spent the money and got the proper equipment and high-quality wiring, then you wouldn’t have these delays and you could probably even save money in the long run. (Judge’s Associate)

The installation of an uninterrupted power supply (to mitigate against the risk of power surges), and contemporaneous, consistent software and facilities was deemed essential. When there was variability across sites, it exacerbated the risk of human error because the person operating the equipment would be less familiar with the technology at any particular site. The professional who worked as an AV Services Manager suggested the need for a centralised recording system as standard across courts. A single AV unit (based at one courthouse) could manage and control all recordings across the jurisdiction (enabling quality control), and if the recording was backed up simultaneously on the cloud as well as a localised server, this would minimise problems arising from central network. A centralised recording system would justify investment in continual quality improvement and state-of-the-art equipment. The perception was that technology needed to mimic ‘real life’ testimony as much as possible, but also be useable, which required striking a balance between system complexity and human error potential. The fewer steps that an inexperienced operator must take to make a given piece of technology work (that is, pressing one button or a series of buttons), the lower the risk of human error, however the more that the system itself must do in terms of its internal programming, and the more complex the internal machinery. Having an AV specialist at a central location and state-of-the-art equipment provided a cost-effective compromise.

People-oriented solutions

Twelve of the professionals made recommendations directed to the people using and interacting with the technology. Ten of these suggested better staff training, and not just the basic operation of courtroom technology, but more ‘holistic’ training in knowing how to troubleshoot. There came a limit in cost benefit of formal (standalone) training, however, especially with high turnover of court staff. The AV Services Manager perceived that using technology is a distinct skillset, and not something that can be picked up or done on an ‘as-needed’ basis. A tiered model was recommended, where a set of ‘try this first’ rules could be applied before IT services was called. One problem is that high anxiety, low confidence, and fear of using technology among non-IT staff only exacerbated user error, because it impeded motivation andimpaired cognition to be able to respond to errors as they arose. While judges’ associates were quite capable of some hands-on troubleshooting, the expectations of what they could do appeared unrealistic. It was deemed essential to have more IT support staff, along with judicial education so that judges could understand how the technology operates, its limitations, how it integrates into courtroom processes and what they could do to make the presentation of evidence as effective and efficient as possible.

Three professionals suggested better communication between stakeholders in creating the recording: that is, earlier access by the courts to police interviews, and more feedback from legal professionals about what they need in the courtroom to facilitate the trial. Three professionals suggested that testing of the equipment could be done earlier and more frequently so that faults could be detected (where possible) and fixed earlier. Three professionals of various backgrounds described procedures that their workplaces had successfully implemented as ‘safety mechanisms’ to minimise the chance of human error, such as using back-up recording devices, creating signage to indicate when a recording had begun, and working in pairs to operate the equipment. Having some forum to share solutions was deemed a benefit to all.

Discussion

Advances in technology have enabled special measures to be introduced, with the aim of improving the experience of child (and other vulnerable) witnesses and trial fairness (Cossins, 2010; Cossins & Goodman-Delahunty, 2017; Evidence (Children and Special Witnesses) Act, 2001 (Tas) s 3A; Justice Legislation Amendment (Committals Reform) Act, 2010 (NT); Lee et al., 2019). The focus has been on technology as it relates to videoconferencing, audio and remote witness facilities and electronic playback of evidence. This study has shown that despite the many improvements brought about by such reforms, the operationalisation of the measures has been hindered by a wide range of challenges, including both operator errors and faults in the technology itself. Most of the 18 professionals who were interviewed for this study indicated that problems with courtroom technology were commonplace. While such problems were generalisable across regions, they were particularly evident in rural and remote areas due to the poorer infrastructure and resources allocated to these regions and the higher likelihood of network failures due to extreme weather patterns.

When considering the broader literature evaluating the operationalisation of special measure reforms, not a lot seems to have changed over time. Research involving qualitative interviews with criminal justice practitioners (i.e., prosecutors, defence barristers, judges) over the past 15 years has revealed widespread concerns related to technological problems. Consistent with the current study, the problems have been diverse, including poor audio and/or visual quality of recordings or video link evidence, failure of equipment, network faults and inappropriate or poor equipment set-up (Cashmore & Trimboli, 2005; Powell & Wright, 2009; Powell et al., 2016). The unique contribution of this study is that it has demonstrated that the problems have persisted post-COVID, and it has depicted the problems from the perspective of the users (e.g., judges’ associates, registrars, investigative interviewers, and IT/AV specialists).

Overall, irrespective of the professionals’ backgrounds, location and technological expertise, the cohort of participants depicted a group of professionals that were often out of their depth with regards to the quality of equipment and resources allocated to them, the training provided to generalist staff (e.g., judges’ associates, child protection workers) and their control of room set ups. The impact of technological problems, when they occurred, was pronounced. The evidence-gathering process turned into multiple (potentially re-traumatising) attempts for the witness to tell their story, and trial proceedings were disrupted, delayed and rescheduled, thereby compounding the stress of witnesses, families, and professionals. These problems undermine the very reasons that the reforms were introduced in the first place, which is to enhance efficiency, reduce trauma of testifying and improve administration of justice (Cossins, 2010; Cossins & Goodman-Delahunty, 2017; Hamlyn et al., 2004; Lee et al., 2019; Evidence (Children and Special Witnesses) Act, 2001 (Tas) s 3A; Justice Legislation Amendment (Committals Reform) Act, 2010 (NT)).

Technology is rapidly improving and progressively being woven into all aspects of courtroom systems, including digitisation of files and the use of artificial intelligence to analyse large amounts of data and assist judicial decisions (Nikolskaia & Naumov, 2020; Ulenaers, 2020). As such, it is intriguing that the difficulties in relation to AV links, remote witness facilities and electronic playback of evidence have persisted over time despite the simplicity of the processes (relatively speaking), frequency of use and the considerable cost (both monetary and non-monetary) to stakeholders when problems occur. Although the aim of this study was not to identify in detail the implications of these problems—rather, it was to understand the experience of the users—a few words may be said, extrapolated from the interviews, about the consequences from a procedural justice perspective.

As discussed, technological problems impede procedural aspects of courtroom processes: parties cannot hear each other, have to resort to ‘gestural forms of communication', talking over each other and losing evidence on transcripts (McKay, 2020). It is not only the outcome of the trial or matter that is important, but that the correct process has been followed and that participants feel as if they have had their day in court (Legg, 2021; Rundle, 2016). As the results of this study demonstrate, these problems are persistent and cause stress and frustration for the parties involved, as well as delaying justice outcomes. Thus, there is a risk of undermining procedural fairness. In other contexts, procedural justice theory has been used to explain why sub-standard police behaviour undermines public trust in the authorities, which consequently impacts on people’s willingness to engage with them (Hohl, Johnson & Molisso, 2022). Analogously, if participants experience persistent and disruptive technological problems in the courtroom, witnesses may feel less willing to engage with the criminal justice process. For example, they may be unwilling to return for multiple sessions to give their evidence. Thus, understanding precisely what kinds of problems arise helps pinpoint what aspects of procedural fairness are impacted and, consequently, how the operation of the justice system may be improved.

The interviews with professionals highlighted several possible reasons for the persistence of errors. First, the systems appear to be provincial, with each court and jurisdiction responsible for setting up its own processes and mode of operation. This increases the likelihood of software becoming out-dated, incompatibility across systems, and ineffective troubleshooting. This is consistent with earlier scholarship in the UK, where it was noted that out-dated technology contributes to issues such as mismatched audio and visual (Fowler, 2016). This may be the consequence of two factors. On one hand, there is a general absence of legislated standards, either within jurisdictions or nationally, regarding AV and CCTV quality (McKay, 2020; Rowden et al., 2010). South Australia appears to be an exception; some of the participants indeed explained how the legislative requirements were both a help and a hindrance. The Evidence (Audio and Audio Visual Links) Act, 1998 (NSW) focuses on functionality and availability of technology, rather than its quality (McKay, 2020). As such, there is a foundation for inconsistency between jurisdictions in terms of the quality of the material played back in courts.

An additional factor is the lack of more informal guidance (or training) in courts, which was adverted to by participants in discussing ‘people-oriented solutions’. In New Zealand, for example, there is a ‘Technological failure protocol’ issued by the Chief District Court Judge which specifically deals with, inter alia, ‘drops in quality’ and when the internet connection falters (NZ Ministry of Justice, 2018). Legislation also provides that a judicial officer must consider, amongst other factors, the quality of the technology when deciding on whether to use AV links (Courts (Remote Participation) Act, 2010 (NZ), s 5). Closer to home, the Federal Court has issued a Practice Note on ‘Technology and the Court’ (2016) which aims to ‘facilitate the effective use of technology in the preparation for and at all stages of a proceeding’. However, it does not set out any particular quality standards, nor does the accompanying ‘Technology Resources’ page. As one participant noted, it is possible to digitally enhance pictures or recordings where the quality is inferior, however this attracts its own legal and ethical issues. Editing or otherwise dealing with recordings is carefully restricted by law, in various ways, across Australia such that it may only be done by court order or for limited purposes (e.g., Evidence Act, 1977 (Qld) s 21AZ; Evidence (Miscellaneous Provisions) Act, 1991 (ACT) div 4.2A; Supreme Court of the Northern Territory, Practice Direction No 3 of 2006). So, while it is theoretically possible, manipulating audio or visual evidence to smooth out where errors have occurred is practically difficult. As participants recommended, clear and consistent guidance, both in how to use the technology and how to troubleshoot, may address this first reason for persistent technological errors and target the root of the problems, rather than addressing them after the fact.

Second, the responsibility of setting up the processes rest (in many locations) on those with limited IT/AV expertise; that is, the judge’s associates or court registrars, who are required to operate the technology in addition to performing the other aspects of their role. Finally, the discrepancy between how these systems should run and what happens in reality needs to be understood within the context that changing behaviour is hard, particularly when the change needs to occur within large multi-layered organisations (Heath & Heath, 2011). Addressing the technological problems would involve a cultural shift where the problems are not merely perceived as inevitable or ‘part of the job’, and there is a collective and coherent plan for, and commitment to, an alternative way forward. As some of the participants observed, there can be a discrepancy between the various users of the system: AV and IT specialists, on the one hand, clearly see the limitations of the technology and how it can be used, whereas judicial officers, on the other hand, can either not properly understand how to use it or fail to ‘buy in' entirely.

Conclusion

The current study highlighted that knowing how to use courtroom technology requires more than improved directive instruction to the operator, although that may be one aspect. Any effective solution would likely need to be multi-faceted including regular testing of equipment, a distributive workplace learning system involving the participation of all stakeholders, on-site support of IT/AV services, and investment in state-of-the-art equipment and fundamental upgrades to infrastructure. This is not to undermine the progress that has already been made. Australia has otherwise made great strides in reforming courtroom practices to support vulnerable witnesses (e.g., intermediaries, collaborative investigations involving both police and child protective services, and changes to rules of evidence). In relation to technology, the professionals in our study put forward feasible solutions (both short- and long-term) to improve the operationalisation of the measures and provide more consistent service delivery. If we take heed of these suggestions, the technology can support what progress has already been made to create a cohesive, well-rounded system that ensures equal access to justice, in a way that is attentive to the limitations of court staff expertise and the needs of vulnerable children.

Acknowledgements

The authors acknowledge the support of the professionals who volunteered to participate in this project, and to Dr. Becky Earhart for conducting several of the interviews.

Disclosure statement

No potential conflict of interest was reported by the author(s).