2.1 The Police
Police in England and Wales consist of 43 individual forces of varying size, population covered, and degree of urbanisation, which operate largely independently from each other.
West Midlands Police, who sponsored this project, is the second largest police force after the Metropolitan Police Service and covers an area of 348 square miles, providing their service to 2.8 million people (HM Inspectorate of Constabulary 2016). Each police force consists of a uniformed branch, an investigative branch, and various special units depending on the size and demands of that particular force. The Criminal Investigations Department (CID) is the police department which investigates serious crimes such as homicide, rape, serious assault, and fraud, all of which require more resources and specialist knowledge. The CID receives the majority of its funding directly from the Home Office (HO).
2.2 The Crown Prosecution Service
The Crown Prosecution Service (CPS) is headed by the Director of Public Prosecution and was introduced in 1986 to replace police-led prosecution with legal professionals and was intended to increase fairness in the justice process. The CPS was created as an independent body at the centre of the CJS to make charging decisions based on the evidence produced by the police and to carry cases on to court where they are presented by a CPS-instructed barrister (Chapman and Niven 2000). While the original intent was to create an independent body, the practical implementation was perceived differently, starting with the creation of 42 CPS areas corresponding to police forces which led to some confusion whether the two agencies were actually distinct from each other (House of Commons Justice Committee 2009). Another aspect which has received criticism from the public is the CPS’s power to decide what crime to charge a defendant with as this is considered to be best decided by the court (House of Commons Justice Committee 2009). However, it ought to be acknowledged that if this power was to be transferred to the courts, the entire justice system would be altered from adversarial to inquisitorial which is the approach taken by many other European countries (Chapman and Niven 2000) and it would create an unmanageable caseload for the
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courts. This charging power of the CPS has increased even further over the past years with the CPS now being involved in plea bargaining, thus moving much of the justice towards the prosecutor and reducing the image of an independent body even further (House of Commons Justice Committee 2009). The aim of granting such powers to the CPS was to reduce the number of cases discontinued in court since these are perceived as a waste of time and financial resources. This approach has proven successful as the number of cases discontinued in court has dropped over the years and the success rate therefore increased (House of Commons Justice Committee 2009), raising new concerns whether the CPS is in fact “undercharging” out of fear of losing in court (Malleson and Moules 2010). This concern also affects the CPS’s relationship with the police. Cooperation between the police and the CPS during the investigation process cannot be avoided as legally trained CPS staff advise detectives on the evidential requirements for a successful charge. Critics of this arrangement argue that it represents a loss of independence and perhaps neutrality for the CPS (House of Commons Justice Committee 2009) while supporters contend that this challenges the police to produce better evidence (CPS 2013). This pressure to satisfy the demands of the CPS is possibly one of the driving factors causing investigators to embrace research into new technologies to produce the most objective and scientifically uncontested evidence possible.
The central role taken by the CPS suggests that any impact assessment should involve representatives from the CPS as they ultimately decide whether and how to use the evidence presented by the police.
2.3 The courts
Criminal offences in the English court system are tried at several levels of courts (Magistrates’
Court, Crown Court, High Court, and Court of Appeal) with each level trying different types of cases. Homicide cases are classed as an indictable offence and are tried before a Crown Court. Lesser offences brought before a Crown Court might be headed by a less senior Circuit judge or a Recorder, whereas homicide cases are usually presided over by a High Court judge or a Senior Circuit judge (Malleson and Moules 2010). The structure of the trial follows a largely standardised pattern where the first days will usually see opening speeches and clarification of formalities, followed by evidence presentations and then expert witnesses which feature in approximately 1/3 of indictable crimes in Crown Courts. The prosecution traditionally begins the presentation of their case although the defence has a right to cross-examine every witness called by the prosecution and vice versa (Roberts and Zuckerman 2010). The evidence presented depends predominantly on oral statements detailing the methods used and conclusions reached for a particular aspect of the investigation. Where
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appropriate this is supported by documents, drawings or sketches, photographs, video, and audio recordings. The use of physical exhibits in court is limited as photographs thereof are considered sufficient and are easier to present (Errickson et al. 2014).
2.3.1 Expert evidence presentation
Evidence of scientific or technical nature is presented by an expert witness who will have adequate knowledge and experience in the field of science or technology the evidence relates to. A major challenge is to communicate the evidence in layman’s terms since the judge and the jury will not normally have any prior discipline-specific knowledge. The main aim is to eliminate confusion to allow the jury to reach their conclusion “beyond any reasonable doubt” which can be difficult to achieve by a verbal account alone. Morse (2009) further observed that most jurors will have grown up in a modern digital age exposed to daily visual stimulations which causes them to expect similar stimulation in the courtroom, purely verbal evidence might fail to capture their full attention. Experts witnesses might choose to use illustrative material to support their testimony but few do which has created the opinion that expert testimony can be dry and monotonous risking losing the jury’s attention (Cooper 1999). While visual aids are sometimes used to support statements, they are not appropriate for all types of evidence. Pathological findings, which are crucial in all murder cases, are particularly difficult to present visually because of their graphical nature which can cause unnecessary emotional distress in the courtroom (March et al. 2004). This calls for new ways of dealing with such evidence, ideally a holistic crime-scene-to-court approach whereby even the initial evidence collection is conducted with its later court presentation in mind. As section 3.3.2 below argues the reliance on experts can also have negative consequences as they have contributed significantly to some miscarriages of justice.
Some of the solutions proposed to address this demand for new courtroom displays (Tung et al. 2015, Schofield 2017) might be challenging to implement as the digitisation of courtrooms is a fairly recent concern to the government and the government agenda to digitise the CJS by 2016 has had mixed success (Morse 2018). From a modern perspective, one would expect that the planned digitisation of courtrooms is swiftly implemented to allow the presentation of digital or digitally produced evidence as people are used to access even complex digital content on their laptop or mobile phone in everyday life, but the reality in the courtroom is often different. Only recently have courts made the move to change to Integrated Communication Technology (ICT) systems which allow court users to connect remotely to media outlets in the courtroom but many court buildings only have one courtroom fitted with these or have to share equipment between rooms. Sometimes this
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equipment is hired from external companies who install and operate it if needed, adding to the overall costs of the trial. This lack of digitalisation might limit the technology choice used in this project as it would be futile to create 3D visual outputs if the courts cannot adequately display them.
2.3.2 Jury research
As mentioned above, this PhD project is concerned with homicide cases which are tried before the Crown Court and are therefore, with few exceptions, subject to trial by jury. This necessitates a discussion about juries and their position within and influence on the trial proceedings. The main aspect discussed here is the jurors’ perception of the events during trial and the information provided to reach a verdict. Some aspects of the theoretical background of research into juries is borrowed from other disciplines such as cognitive psychology and educational research. Researchers in this field appear in constant disagreement over the question whether ordinary members of the public that make up the jury are capable of deciding on such grave judicial matters (Edmond and Mercer 1997).
Similarly, there is no agreement on how capable juries are of understanding complex scientific or technical evidence which is often central to homicide trials. Findlay (2001) argues that jurors are not in a position to grasp such evidence, Ward (2009) sees jury as capable but naïve when it comes to believing evidence, and Pikus (2014) considers juries to possess the cognitive skills necessary to evaluated scientific and technological evidence. Edmond (2015a) argues that juries and judges require certain information about the scientific methods employed to help them assess their validity and that it should be the state’s responsibility to ensure this information is provided. Similarly, Erastus-Oblio (2009) claims that “the verdict of a jury is only as good as the evidence presented to it” which should be put into practice by striving to produce the best evidence possible and use all available resources (within possible financial limits). Irrespective of their inherent capability, jury understanding can be improved by more effective judicial instructions.
Brewer et al. (2004) compared the comprehension of actual Supreme Court judge’s instructions using verbal accounts only, more elaborate verbal accounts, and audio-visual instructions using animations to outline the major arguments. They found that by adding the visual element, participants reached a fairer verdict. This was particularly true for their non-expert group which had no prior legal knowledge thus representing actual jurors more realistically.
Visual aids play a significant role in jury research. Bright and Goodman-Delahunty (2006) found that even neutral photographs are perceived as more compelling evidence than
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verbal descriptions, following the saying “seeing is believing”. However, the viewer might also be “tricked” into believing something untrue, or made believe to remember something they had not actually experienced (Newman and Feigenson 2013). A further problem with images, and gruesome images in particular, is that they frequently evoke an emotional response (Bright and Goodman-Delahunty 2006, Feigensen 2010) leading to less rational decisions and therefore unfair trial outcomes. A study by Battye and Rossner (2017) examined the effect of computer animations on the jury in a re-created terrorist trial. They observed that jurors expected to see graphic images and realistic animations and were disappointed if none were provided, despite earlier studies suggesting a negative influence of these (Edelman 2009). Battye and Rossner (2017) attribute this expectation to the so-called “CSI-effect”. The CSI-effect means that much of the jury’s expectations regarding forensic evidence is guided by popular crime TV shows, a phenomenon which has been increasingly recognised in studies across the globe (Goodman-Delahunty and Tait 2017). This effect can then lead to a poor judgement of the actual value of the evidence if it does not conform to the juror’s expectations, as Goodman-Delahunty and Tait (2017) observed for high-tech visual evidence such as animations. Shelton et al. (2006), however, argue that the CSI-effect is in fact a general technology effect as technology plays an increasingly large part of everyday life. They continue to suggest that it is therefore likely that it is the lack of technological progress in courtrooms which dampens the jurors’ confidence in the justice system. With these considerations in mind one can focus on the positive impact visual evidence can have on jury understanding. Audio-visual information is five times more likely to be remembered than audio alone (Fulcher 1996, Lederer and Solomon 1997), thus assisting the jury members in their deliberation. Furthermore, the compelling nature of visual evidence can be employed in a positive manner to explain the facts of the case. For this to be free of bias, the evidence must be presented objectively.
The problem with research in this area is that it relies on different study populations and study designs which makes it difficult to compare the results. Many researchers use students as participants in so-called mock trials where participants are split into groups which then receive differing information on the same (sometimes fictional) case in order to assess which factors influence decision-making (Park and Feigenson 2013). The majority of studies cited above are based on evidence derived from mock trials that can provide some useful insight but lack taking into account the special circumstances under which such a decision is made in a real trial where someone’s freedom - or depending on the country their life - is at stake. Research using real jurors is rare, in particular in the UK where the Contempt
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of Court Act 1981 limits jury research. Few researchers have investigated this prior to the UCL Jury Project which worked with Crown Court juries with the aim of reforming the Contempt of Court Act based on actual evidence (UCL 2018).
2.4 Forensic Science and pathology
Forensic science starts at the crime scene where crime scene personnel are responsible for searching for, recording, and collecting physical evidence. The majority of crime scene departments are attached to the police forces although most staff are civilian. The evidence is then sent to specialist labs, some of which are in-house while others are external paid service providers. However, not all evidence can be analysed due to budgetary limitations - investigators have to prioritise and select items expected to produce the most compelling results. This selection must also include items which potentially exclude a suspect. Failure to do so can lead to one-sided evidence and potential miscarriages of justice (Robertson 2013).
If the examined case is a suspected homicide, the deceased is taken to the mortuary where a HO pathologist conducts a forensic postmortem examination of the body with the aim of establishing the cause and manner of death, sometimes with the help of further specialists.
The pathologist only visits the scene to examine the body in-situ in complex situations as this would risk deterioration of the body and therefore loss of evidence and would cause costly delays in the investigation. Nevertheless, these scene visits can contribute to the pathologist’s understanding and interpretation of the injuries (Saukko and Knight 2004).
Autopsy practices have remained fairly unchanged over the past decades although an increasing number of institutions include postmortem imaging techniques in their routine procedures. There is a significant trend towards non-invasive or minimally-invasive postmortem examination as the next chapter will elaborate.