Information Technologies in Jury Trials: International Experience

and the Possibility of Its Implementation in the Russian Legal Field

Pavel A. Lutsenko

and Genrikh S. Devyatkin

Candidate of legal Sciences, associate Professor, Department of Humanities, Civil and Criminal Law, Humanities and

Law faculty , Voronezh State Agrarian University named after Emperor Peter the Great, Voronezh, Russia

National Research University of Electronic Technology

Legislation, The Government Cipher Commission, Hanoi city, Vietnam

Keywords: jury trial; justice; proof; information technologies; criminal case; verdict; procedural actions; sides.

Abstract: Introduction. Trial jury is a dynamically developing form of administering criminal justice. The Russian

legislator has expanded the scope of this institution, extending its effect to the level of federal district courts

and garrison military courts. The complexity of the procedure, which lengthens the time for considering cases

in court, the necessity to attract significant material resources, organizational costs are the factors that do not

contribute to the effectiveness of justice administration. However, in assessing the usefulness of maintaining

this institution in the Russian criminal process, it is necessary to proceed from the priority of values related

to the protection of individual rights. Materials and methods. Using the comparative legal method of scientific

research, a foreign experience of applying certain informational techniques is analyzed. This experience

allows to prepare preliminary a citizen for the performance of juror duties and to carry out the function of

administering justice during the trial. Research results. Going away from the problems that have been

discussed in the science of the criminal process that accompany the formation and the development of the

trial jury in Russia, the author suggests and proves the thesis that the main direction for its further

improvement should be the model changing of juror cognitive activity by the implementation of information

technologies that can turn a citizen from a passive observer of what is happening in the courtroom into an

active participant in the evidence process. Discussion and conclusion. The authors conclud that the trial jury

as a procedure ensuring the making of independent and fair decisions has certain advantages, which allows

us to accept the inevitable costs connected with the organizing of legal proceedings. Some of the simplest

information technologies, such as keeping written records during a judicial investigation, using

videoconferencing and etc., are already partially used in court practice, but their scope can be expanded

significantly. Other technologies within the general policy of informatization and digitalization, conducted in

Russia, haven't been mastered yet.

1 INTRODUCTION

The experience of the jury trial functioning abroad

and in Russia testifies to the relevance of this

institution, its permanent dynamic development. The

numerical composition and the jurisdiction are

changing, the procedure is becoming more

complicated, but the task of the jury to decide on the

guilt or innocence of the defendant remains

unchanged. At the same time, there is a lack of any

significant changes in world practice that would

https://orcid.org/0000-0001-6838-4846

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expand the tools provided by the legislator to

members of the public for the realization of

procedural function (Jackson Brian A. etal., 2016).

Moreover, the obvious complication of the process of

criminal procedural knowledge in the conditions of

rapid information technologies development have

complicated significantly the work of the jury. The

legislators of individual states have chosen to limit

the powers of the jury, for example by reducing the

list of matters within their competence, the protection

of jury from excessive emotional stress by preventing

Lutsenko, P. and Devyatkin, G.

Information Technologies in Jury Trials: International Experience and the Possibility of Its Implementation in the Russian Legal Field.

DOI: 10.5220/0010660000003224

In Proceedings of the 1st International Scientiﬁc Forum on Jurisprudence (WFLAW 2021), pages 33-39

ISBN: 978-989-758-598-2

the production of certain investigative and judicial

actions with their participation (Travis Hreno, 2007),

expanding the limits of intersystem judicial control

over the validity and motivation of jury decisions

made by a court (Landsman Stephan, James F.

Holderman, 2010). All significant changes in the

procedural form of legal proceedings in this case are

accompanied by a discussion of the traditional issues

for both the representatives of legal science and civil

society about the viability of the institution (Dann B.

Michael, 1993; Tanford J. Alexander, 1991). The

essence of the problem is connected, among other

things, with the need to increase the efficiency of the

jury, turning them from passive observers of the

evidence process into its active participants which are

able to make decisions even in complex and long

trials.

The specialized literature has repeatedly raised the

question of “active jurors”, providing them with new

tools to fulfill their tasks (Bykov V. M., Mitrofanova

E. N., 2009; Grinenko A.V., 2015), but it has not

found an adequate solution yet. The problem of the

information equipment of the jury is updated today,

during the period of rapid development of relevant

technologies, which also affected the judicial system.

In particular, the Concept of the federal target

program “Development of the Russian judicial

system for 2013–2021” provides a set of actions

aimed at informing the judicial system and the

implementation of modern technologies into its

activities. These actions include: providing citizens

with the opportunity to use information technology

both in obtaining information about the courts, and at

each stage of the trial, beginning from the date of

appeal to the court until the end of the trial; creation

of modern information and telecommunication

infrastructure; improving the quality of courts based

on information and communication technologies

through the use of video and audio protocolling of

court proceedings, software and hardware for

digitizing documents and video conferencing

equipment . As a result, the beginning of justice

transparency is highlighted in combination with other

actions aimed at increasing the level of openness,

accessibility and effectiveness of the judiciary. It is

recognized as an essential condition for increasing the

level of public confidence to representatives of the

judiciary as a whole and, accordingly, to their

decisions.

2 MATERIALS AND METHODS

The methodological basis of the study is the

dialectical method of cognition, as well as the general

theoretical methods based on it: analysis, synthesis,

induction, deduction, ascent from the abstract to the

concrete and etc. The validity of the conclusions and

recommendations contained in the article is ensured

by the complex application of general and specific

scientific methods: logical, comparative legal,

statistical, sociological and others.

Through the study of information technologies

which are acceptable for using in jury trials in the

author's opinion, a system-logical analysis and

synthesis were applied. It has made it possible to

single out several informatization areas of the

considered form of administering justice. The study

of the theoretical problems of the judicial

investigation with the participation of jurors was

performed using the method of rising from the

abstract to the concrete, which made it possible to

define the determining signs and limits of evidence in

the Anglo-American and continental systems of law.

The comparative legal method was used in studying

the foreign experience of preliminary jury instruction,

performing certain judicial actions, as well as

preliminary jury instructing of the presiding judge, as

well as their Russian counterparts.

3 RESEARCH RESULTS

Considering the problem of jury informatization, it

must be taken into account that jurors are

representatives of the judiciary in a specific process,

and today it has a significant information resource

that is used to perform the main function of

administering justice. In this context, even with the

existing division of competence between the

presiding judge and the jury, the information jury

support seems clearly insufficient.

In this regard, the retrospective studies conducted

in the USA, Great Britain, Canada, Germany and

other countries are quite interesting. With varying

degrees of historical detail, the retrospective studies

indicate the increasing importance of the party

activities carried out under the control of the

judiciary, noting that the jury remains information

dependent on the quality of the evidence performing

by the prosecutor and the counsel (for example,

Stephen C. Yeazell, 1990; Langbein John H., 1993;

Niamh Howlin, 2014). Moreover, the independence

of the cognitive process which is conducted in a

WFLAW 2021 - INTERNATIONAL SCIENTIFIC FORUM ON JURISPRUDENCE

criminal case by public memebrs within the

implementation of the function assigned to them is

close to zero. It is connected not only with the

presiding judge’s obligation to advise and instruct

jurors on substantive law and procedural form, but

rather with their dependence on persuasiveness and

the ability to conduct public discussions,

demonstrated by professional participants in criminal

proceedings on the part of the prosecution and the

defense. «In a modern courtroom, a lawyer and a

defense attorney have control over the presentation of

the collected evidence, and the judge has control over

the court trial, and all that remains for the jury in these

conditions is to sit back and listen» (Nancy S. Marder,

2001). Such a situation seems unacceptable and

causes criticism, including from the judiciary, whose

representatives participate in the discussion of the

raised problem. It points to the fact that expanding the

boundaries of cognitive juror activity will allow them

to assimilate a greater amount of information

examined during the trial, analyze it, summarize and

draw their own conclusions and it will enhance

significantly the independence of the panels (Dennis

J. Devine, 2012). For example, Arizona Judge M.

Dunn, as Chairman of the Jury Reform Committee of

the State, took the initiative to introduce procedural

changes to the law that would allow jurors not only to

make notes during the trial, but also to have a list of

material evidence as well as witnesses, summoned to

court due to the initiative of the parties; participate in

the preliminary hearing of the criminal case, received

the instructions of the chairman; to request and

receive from the prosecutor and the defense counsel

additional argumentation of their position in case of

difficulties in giving a verdict. Partially indicated

suggestions were implemented by the legislator not

only in Arizona, but also in some other states (James

Oldham, 2006).

An analysis of the various approaches suggested

in special studies allows us to identify several

promising directions for raising the level of juror

awareness, which can be implemented in Russian

legislation in length of time.

First of all, it should be noted that a jury candidate

is a person who does not have a procedural status,

selected as a result of random sampling as required by

law, who has the obligation to appear in court to

participate in the formation of a jury. The above thesis

is confirmed by an analysis of the current Russian

legislation provisions. So, jury candidates are

selected to consider a specific criminal case from the

general and reserve lists that are in court by random

sampling. In accordance with Art. 4 of the Federal

Law “On jurors of federal courts of general

jurisdiction in the Russian Federation” , the highest

executive body of state power of a constituent entity

of the Russian Federation makes general and reserve

lists of juror candidates every four years, including

the number of necessary citizens to work in the court

and they are permanently resident in the Russian

Federation. Then, the candidates are examined to

identify the presence (absence) of circumstances that

prevent the participation in the criminal process as a

jury. A list of such circumstances is contained in Art.

3 of the Federal Law “On jurors of federal courts of

general jurisdiction in the Russian Federation”. When

making a preliminary list of jurors, the courtroom

secretary or assistant judge must take into account the

requirements of Part 3 of Art. 326 of Criminal

Procedure Code of the Russian Federation (CrPC

RF), according to which the same person cannot

participate in jury trials more than once during a year.

After the completing of the selection procedure for

jury candidates, taking into account the existing

legislative restrictions, a preliminary list is made

indicating their last names, first names, patronymics

and home addresses in order to the random sample.

Jury candidates included in the preliminary list no

later than 7 days before the start of the trial are given

notices with the date and time of arrival in court,

which are currently the only form of information

work with potential jurors.

The lack of procedural status for the jury

candidate, in our opinion, expands the scope of his

possible informing, because it cannot affect the future

consideration of the criminal case and consists in

providing information of general and orienting

nature. Preliminary information of jurors, including

some training elements, has been tested for a long

time by the courts of Great Britain (for example,

Johnson Dick Lansden, 1948). In modern conditions,

the widespread use of Internet technologies has made

it possible to draw on their help to provide jury

candidates with general background information

about the location and internal organization of the

court where they are going to work. For these

purposes, the vast majority of US courts use websites

to provide jurors with basic information such as maps

and directions to the court-house . This simple

decision is essential because it allows jury candidates

not only to find the address indicated on the notice,

but also, most importantly, to feel immediately their

need and relevance in the trial, the state’s attention to

their future role, and, accordingly, its significance and

the responsibility assigned to them. In some

countries, they go even further by providing jury

candidates with virtual tours around the court-house

so that they can freely navigate and not feel

Information Technologies in Jury Trials: International Experience and the Possibility of Its Implementation in the Russian Legal Field

constrained and awkward (Shelton Donald E., Kim

Young S. And Barak Gregg, 2006).

In addition, informing in advance may include a

memo for potential jurors in the form of answers to

frequently asked questions, a glossary, a list of rights

and obligations of a juror, which a person can get

familiar with before the first appearance in court.

Until now, such activities have been carried out using

the jury guidance, which was sent to candidates by

mail, however, the impossibility of prompt correction

of useful information and its updating with new

information was recognized as one of the significant

shortcomings of this method of informing. Currently,

such type of guidance is posted on the court’s website

and are sent to jury candidates by e-mail . It is also

important to provide candidates with jury video

information about their future role in the court

session. In several states of the USA and in Great

Britain, a demonstration of a training film for jury

candidates upon their arrival in court has entered into

judicial practice. In some countries, online broadcasts

are practiced, which, according to experts, has a

positive effect on the psychological mood of jury

candidates when they can improve their educational

level and prepare for a future hearing in their own

homes, in a relaxed atmosphere, at convenient time

for them, and it also has a positive impact on the

degree of video series uptake, as jury candidates can

watch the video several times, come back to certain

episodes that caused difficulties, etc. (Mar Jimeno-

Bulnes, 2011, p.593..; Robert M. Bloom, 2006).

Internet orientation, in our opinion, is a very

economical way to increase the awareness of

potential jurors, it makes it possible to coordinate

information relatively easily and without significant

material costs, combining the guide with video

broadcasting, thereby ensuring high-quality

preliminary preparation of each jury member for

performing jury duties.

The preliminary informing of candidates for the

jury trials using the Internet is also of one significant

significance: a person does not have to appear in court

in person to receive a large amount of information,

including eligibility to participate in a criminal case,

i.e. compliance with the legal requirements for juror

candidates, grounds for challenge and recusation,

frequency of court hearings, potential dates of their

employment, possible working hours, etc. First of all,

it significantly saves private time of a citizen,

therefore demonstrating the court respect, which, in

our opinion, should encourage the performance of the

functions of a jury. Secondly, according to

psychologists, such approach gives a person a sense

of control over their activities at the very beginning

of the performance juror duties (The Psychology of

Juries, 2017).

Currently, the application of information

technology in the courtroom is in its formative stage.

The procedure of verbal investigative activities using

video conferencing has been widely introduced into

Russian judicial practice, which increases the

informative accessibility of participants in the process

regardless of their location, as well as the

implementation of the principle of directness in terms

of examining the testimony of the victim and witness

(Article 240 of the Russian Federation Code of

Criminal Procedure), and in some cases, the

defendant (Part 6.1 of Article 241 of the Russian

Federation Code of Criminal Procedure). However, it

seems that this is not enough to form an active jury.

The Criminal Procedure Law extremely limits the

panel in examining the evidence submitted by the

parties. In accordance with Part 1 of Art. 333 of the

Russian Federation Code of Criminal Procedure,

cognitive array of tools comes down to the existence

of three rights of a jury member: to ask interrogatee

questions through the chairman, to participate in the

examination of material evidence, documents and

other investigative activities; to ask the presiding

judge to clarify the norms of the law related to the

criminal case, the content of documents announced in

court and other issues and concepts that are not clear

to them; keep their own notes and use them when

preparing answers to the questions in the jury room.

In the literature, the similar approach of the legislator

has been repeatedly criticized (for example, S.

Nasonov, 2014), however, this approach is traditional

for the considered form of proceedings and is

accepted in the vast majority of judicial investigation

models with the participation of the jury. Shifting

away from the generally accepted norms is always

accompanied by continuous debates and takes time.

In this sense, such a simple way of evidence

documentation as drawing up written records in the

course of a judicial investigation (paragraph 3 of part

1 of article 333 of the Code of Criminal Procedure of

the Russian Federation) is an illustrative example. It

should seem a very common technique, but its

introduction into judicial practice at one time was

controversial. The main argument in favor of

establishing a ban on the written recording of

information was the fact that the juror is distracted

from the direct perception of what is happening in the

courtroom, which can lead to incorrect perception of,

for example, testimony, affecting the quality of the

assessment in the jury room (David L. Rosenhanetal.,

1994). And at present, some experts indicate that the

jury in the process of returning a verdict pay more

WFLAW 2021 - INTERNATIONAL SCIENTIFIC FORUM ON JURISPRUDENCE

attention to their own written records than to other

information left in mind, even after the presiding

judge delivers a parting word (Dunn B. Michaeland

Hans Valerie P., 2003). However, drawing up of

written notes has become common practice, which is,

in our opinion, quite justified, because as well as

judges who record certain information during the

trial, the jury more deeply delves into the subject of

the investigation, record significant, facts,

circumstances and issues which they can return to

later in the jury room, as well as uncertainties arising

in the course of the evidence presentation. The

simplest information technology using a pencil and

paper in this case plays a significant role in the

formation of an active juror, who can critically

consider the evidence presented by the parties,

establish a connection with the previously

investigated evidence, highlight problems that require

thorough understanding and discussion.

In a judicial investigation, a general rule works -

information is provided in one form and only once. If

this is enough for professional participants who are

previously familiar with the materials of the criminal

case, the jurors may have formidable difficulties

owing to this. It is believed that a cognitive technique

can be implemented in the Russian judicial practice

which has been used successfully in other countries

for a long time. This technique gives the jury another

opportunity to examine the video of the investigative-

judicial activities in the jury room. In a similar way, a

study of material evidence can be carried out, which

is currently being demonstrated by the jury in the

courtroom. The study of objects and documents is

carried out not only by demonstrating them, which

often leads to a superficial examination, but by

visualizing them on a widescreen monitor, which

allows focusing on individual details, which means

making the material easier to perception, taking into

account the fact that the vast majority of citizens are

accustomed to receive information on television or

via the internet.

It should be noted that such practice in foreign

legislative realities is still extremely limited. For

example, in the USA, the use of video-screens and

monitors in the courtroom has been a “pilot project”

in some states since 1999 (Lederer Fredand Richard

Brust, 1999), but is still positioned as a promising

direction of the development of judicial practice in

criminal cases involving jurors. In this respect, an

empirical study conducted by D. Tate and M. Rossner

is of particular interest. Within the study the changes

in the jury’s perception of evidence-based

information visualized using visual materials (tables,

diagrams, video-screens), as well as computer

technology have been analyzed. The authors came to

controversial conclusions. On the one hand, the

presentation of evidence in this way positively affects

the jury’s perception of the evidence, stimulates more

active debates, “giving the minority the opportunity

to be heard and ultimately making it easier to reach a

compromise in making a decision.” On the other

hand, if evidence is visualized by only one party (for

example, the prosecution), this can lead to a

diminution of the principle of fair trial, since the jury

is more active in responding to “an intense and

memorable information flow, without evaluating the

reliability of the information provided” (Eaccessto

justice, 2016). We believe that both arguments are

significant and require further discussion.

An example of successful visualization of

evidence by the prosecution is a lawsuit against

members of the organized criminal community “29th

complex” (Naberezhnye Chelny), which lasted 1 year

and 8 months. The prosecution used various technical

means: a stationary computer with a printer and a

scanner, a laptop, a digital voice recorder, a video

camera, and a mixing console was installed in the

courtroom with the ability to change voice data to

interrogate witnesses to ensure their safety, with an

appropriate set of microphones and speakers , a TV,

a large projection screen with a projector, etc., which

ultimately nullified the efforts of 27 defendants'

lawyers and led to delivering a guilty verdict, as well

as the assignment of punishment of the Supreme

Court of the Republic of Tatarstan, according to

which they were sentenced to significant terms of

imprisonment. According to the data cited by M.V.

Belyaev, a survey of 23 jurors, including the main

jury, showed that the vast majority of respondents

answered that “the visual series presented to their

attention, accompanying the speech of the state

prosecution, significantly helped them recall the

previously investigated evidence and form their

opinions on the accusation presented.”(Belyaev

M.V., 2017).

In addition, it cannot be ignored that the jury

is a group of people in a stressful situation, since they

are obliged to make a decision that has significant

legal consequences, while not being able to conduct

their own research in a criminal case, being under the

burden of the need to reach consensus, they have to

discuss the circumstances of the crime, enter into a

discussion, while not knowing each well.

Undoubtedly, in such a situation, any informational

assistance that can be provided without prejudice to

the legitimate interests of the parties is appropriate.

An important issue of the jury’s perception of the

presiding judge’s parting word also requires

Information Technologies in Jury Trials: International Experience and the Possibility of Its Implementation in the Russian Legal Field

discussion. Currently, it is pronounced orally without

being recorded on audio and video devices.

Moreover, unlike foreign practice, the Russian

legislator does not stipulate for the possibility of

presenting the presiding judge’s speech in a written

form for the jury’s re-examination in the jury room.

We believe that the video recording of a parting word

will significantly facilitate the work of both the jury

itself and the court, because if there are difficulties in

delivering a verdict or simply while discussing issues

with insufficient information, for example, on the

basic rules for evaluating evidence, the jury will no

longer need to return to the hall court, and the

presiding judge does not need to call the parties to

discuss issues. Audio and video recording will allow

the jury to reconstitute any part of the parting word as

many times as necessary, stopping at any time to

discuss what they have seen or heard.

4 DISCUSSION AND

CONCLUSION

In our opinion, the introduction of information

technology in the activities of the jury should be

carried out taking into account several fundamentally

important points. Firstly, any legal tools that expand

the boundaries of cognitive activity of the jury should

contribute to the formation of the status of an active

juror participating in the organization and analysis of

information about the circumstances of a criminal

case almost immediately from the start of the trial.

Secondly, means of information technology should be

carefully filtered, since the “wholesale” transfer of all

existing technologies to the courtroom is impossible

and impractical. The means and methods of

information perception should be sufficient for the

jury to fulfill their functional role. In this case, the

term “technology” is used in a purely practical sense,

including both simple technological tools that allow

jurors to take notes during the trial, and, for example,

computer equipment that allows such records to be

organized and used more efficiently. And finally, the

expansion of the information space that is allowed in

a legal proceeding for those brought in as jurors

should not be accompanied by a violation of the rights

and legitimate interests of other participants, those

who are particularly interested with in the outcome of

a criminal case - the defendant and the victim.

Without doubt, the introduction of information

technology in the jury activities is not a panacea that

allows you to solve many problems that arise while

applying this form of a criminal case settlement, but

it can significantly facilitate the jury performance.

This will allow not to limit the jurisdiction of the jury,

not to moderate subjection to a jurisdiction, but to

update the range of information technology means

available to non-professional judges, taking this form

of legal proceedings as a fact. The results will be a

transition from the passive role of a jury, which is a

characteristic of the vast majority of existing models,

to an active one, raising public interest in

participating in justice administration and raising the

level of judicial power as a whole.

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Information Technologies in Jury Trials: International Experience and the Possibility of Its Implementation in the Russian Legal Field