Brave New Worlds: Challenges for Evidence in the 21st Century – A Student’s Perspective

Marcus Dahl

The complicated relationship between the disciplines of law and science is never so openly on display as it is in the study of fact-finding in evidence law. What evidence is allowed in a trial, how it has been collected and summarised, what weight it is given, and how its reliability plays on the minds of a jury are all issues at the crossroads of scientific method and legal reasoning.

In this respect, it was fitting that High Court Justice The Hon Stephen Gageler AC gave a keynote address titled ‘The Science of Truth’ to the conference jointly held by the National Judicial College of Australia and the ANU College of Law, Brave New Worlds: Challenges for Evidence in the 21st Century. On March 4th and 5th, 2017, Brave New Worlds brought together some of Australia’s sharpest academic and judicial minds to address some of the deeply challenging issues that evidence law faces in a modern world of science and technology.

A sample of some of the contentious issues raised are noted here. The first was how transcripts of covert recordings are used in court and how they can be unreliable and contain difficult-to-detect inaccuracies, which risks likely injustice unless independent phonetic science is more prominently featured in the court process. Another related classic example is in the use of less-than-certain DNA evidence, and the issues around the so-called “CSI effect” where juries are susceptible to trusting any forensic evidence as fact. Perhaps more worrying, research around face identification of strangers suggests that even under the best of conditions, our ability to correctly ID unknown faces is as low as 50%, worsening with other-race effects, despite the weight that such evidence carries in court. These sessions were filled with difficult questions that clearly did not have easy answers.

These apparently severe conflicts between research and evidence law can, in my mind, be attributed to two key differences between scientific and legal practice. In science, a publishable theory or method is measured against all existing theories by a high threshold of statistical significance, and its purpose is to improve upon our estimation of facts without making claims of certainty. In law, an admissible theory or method is measured against the legal standard (beyond reasonable doubt or balance of probabilities) in isolation, and is for the purpose of proving facts and subsequently treating them as if they were certain. Science can be published with error bars, confidence intervals, and recommendations for future research developments. Judgments cannot.

A scientific method which is accurate 95% of the time will be rendered obsolete by an otherwise similar method which is accurate 99.5% of the time. The same 95% accurate method, however, might be the only one used for forensic evidence adduced by a prosecutor, and the existence of the other method may no longer be relevant. If a judge threw out relevant key forensic evidence simply because it used an outdated method which was slightly less accurate than possible, then an otherwise strong case could be substantially weakened. What is publishable in scientific journals and what is admissible in court are two deeply different measures.

On one hand, this allows the court system to function efficiently, to hear useful evidence and to get results. If research methods were only allowed if they had been published in respectable academic journals, and expert witnesses were only called if they had the right accreditation by professional bodies, then hearings and trials with contentious evidence issues would rise in costs and would slow down badly.

On the other hand, however, worse than justice delivered slowly, is justice delivered wrongly. The admission of questionable expert witnesses with little or no real expertise, evidence using second-rate identification or transcription methods, or testimonies of eyewitnesses whose identification abilities in similar controlled circumstances are a coin-toss, all of which will be given significant weight by a jury or even a judge without a scientific background, is dangerous.

This appears to lead us to a defeated conclusion: that fact finding in law is, and always will be, less reliable than fact finding in science. Evidence law will not always have the luxury of being scientifically publishable. This truth, however, once accepted, is helpful. Science and law are not enemies and their relationship should not be given up on. Twenty-first century science can be applied to help us understand the justice system in ways never before available to us. Because science and law give different types of insights, they can collaborate fruitfully, and with this sentiment, I refer back to Justice Gageler’s address to Brave New Worlds.

In speaking about the ‘Science of Truth’, Justice Gageler was suggesting how behavioural science does indeed show that we are much worse at forming subjective beliefs about facts under conditions of uncertainty. Reference was made to Professor Daniel Kahneman, and as a student of psychology, I highly recommend his work. We are worse at estimating probabilities than we think. We are less rational than we think. Our thought processes are affected by serious and persistent biases. But this does not mean that we give up on having juries or judges or finding facts. Similarly, we do not give up on forensic or expert evidence because it is imperfect.

Science has a role to play in informing the legal process, and that role is expanding in the 21st century world. If we acknowledge the challenges facing evidence law, we can improve it. Behavioural science research into human irrationality, biases, other-race effects and decision-making can inform how juries are chosen, trained and instructed, so as to minimise human error. Forensic science research can inform best practice guidelines for what types of forensic evidence police collect and what kinds of expert witnesses are called in trials. The legal principles of evidence move slowly, but the content of the evidence itself changes quickly. With appropriate direction, funding, and professional training, the quality of evidence and legal outcomes in Australia can continue to improve.

Much like Brave New World the novel, this conference was a fascinating insight into some of the darker, more complicated aspects of human irrationality existing in a rapidly developing, and increasingly rational, technological and scientific world. But much like the novel, one of the conclusions that can be drawn is one of hope and potential. The research methods and technologies we have created can assist us in understanding ourselves, judges, juries and defendants. Whilst it is true that the relationship between science and law challenges us, our assumptions, and existing ways of reasoning, that relationship also offers us new understandings of evidence and juries, new forensic abilities to identify and convict criminals, and the potential for a more just world. Behavioural science, forensice science and evidence law all have contributions to make to each other and to society.

Marcus is a 4th year BSc/LLB(Hons) student, and is an ANUSA Science Representative.

Photo credit: Brave New Worlds Conference Advertising

Crazy for CoL: meet your 2017 ANUSA candidates

The ANUSA College of Law representatives, like all fac reps, sit on the College Representative Council. Perhaps more importantly, they sit on the LLB (hons) Committee, a committee specifically about the undergraduate program and course changes, and the Law College Education Committee, where the college exec sits to discuss faculty-wide issues. Consider it important to choose a good CoL rep because they can ultimately ensure the voice of the ANU law cohort is heard.

With ANUSA elections almost upon us, Peppercorn interviewed the four candidates for CoL rep. Read their responses below and learn more about their policies by going to the Facebook pages for the Amplify and Connect tickets.*

 

Grace Bramwell

In 2017 we aim to work with both students and lecturers to ensure that the best learning experience is provided. We aim to cultivate a culture of collaboration as opposed to competition. We aim to work with our peers and professors to maintain a quality learning experience for students. We are motivated to work towards improving several areas relevant to Law students, including; improving student wellbeing, assessments, and increased opportunities for students.

I have been involved with ANUSA first-year Law camps for the past 2 years, attending as both a student and mentor. I have also been involved with the International Law Society, including being a member of the events committee during my first year and the Education Director for Semester One of 2016. I have previously participated in the Negotiations Competition last year and am currently involved in the LSS Client Interview Competition. I have also just been approved as a member of the new Climate Change LRSJ Project assisting in the development of an issue paper looking at the Australian Climate Change litigation options based on Human Rights.

Q: A distinctive part of law school is extra-curricular opportunities and involvement outside of study. How to you plan to further these opportunities for law students?

A: Myself and Sammy have emphasised the importance of providing all Law students with the opportunity to improve all skills needed when entering the workforce.

Some of the more specific plans that I will focus on to ensure the promotion of extracurricular opportunities for all students will include:

  • The main focus of our policy is to promote opportunities that will require collaboration with past alumni and societies to streamline mentorship programs. For example; working with the ILS on implementing their mentorship plan. More specifically, this will occur through the promotion of more networking events and forums promoting discussion and collaboration.
  • From my own experiences trying to navigate the Law Internship Program, there is a lack of direction and limited availability of information. We will thus strive to a expand the opportunities available to students and provide them with more guidance on how to approach potential mentors and support working through the administrative details to ensure it is not a barrier to interested students whom want to undertake an Internship for credit.
  • There needs to be more use of social media to promote the extra-curricular opportunities available to students. The focus on enhancing both students’ hard & soft skills will allow students to gauge a better appreciation for their strengths extending beyond purely an academic focus.
  • Lastly, if elected as a CoL candidate it will be my primary focus to maintain consistent contact with the highly competent law school faculty particularly with the law school reform committee to ensure that the views of students are adequately represented and tangible change occurs is this area of the Law School experience.

 

Ellie Dowling

I’m Ellie Dowling, currently in my 2nd year at the ANU. The ANU CoL is indeed world-renowned, however I believe areas can be amplified to ensure it’s constantly reflective of, and adapting to, the standards and expectations set by students themselves! In its briefest form, I aim to ensure mental health and overall wellbeing is a structural focus within the CoL, enhance consultation with CoL staff, improve collaboration with other law societies on campus (like the LSS), and heighten student support and engagement. Within these broad frameworks, myself and Maddison have developed in-depth policies and strategies that are realistic, positive and achievable – to find out more check out our policy document floating on the Amplify ANUSA Facebook page. I love studying law at the ANU and believe that all should students should receive a quality education and a fantastic student experience.

This year I was lucky enough to have worked in the Education Portfolio on the Law Students’ Society among some amazing people. Through this experience I’ve developed a deep understanding of both broad and individual issues existing in the CoL, plus how to implement successful strategies of improvement. In the Education Portfolio, I organised and contributed to initiatives such as pre-exam tutorials, electives guides, speaker series, and a first year Q&A introductory forum. It was through this opportunity that I learnt many of the consistent concerns being raised by students such as timing of exams and assignments, quality and quantity of feedback, tutorial signups and marking criteria, international opportunities, and the digital evolution of education delivery such as the introduction of JD Online. I’ve also been involved with the Law Marketing Team through my upcoming participation in the 2016 CoL Open Day Program as a Student Ambassador.

Q: Mental Health at law school is a vital topic, with many students and professionals affected by these issues. How do you propose to alleviate stress amongst your peers?

A: The mental welfare and wellbeing of law students arises as a systemic issue year after year, and often is dealt with through inadequate strategies that have either unachievable or inadequate goals. Feelings of insecurity and distress are common among CoL students, and I aim to address the common triggers of mental stress on students though realistic, positive and achievable strategies.

I plan to conduct widespread student consultation through direct dialogue and feedback surveys to pinpoint the compulsory causes that induce the highest level of stress. Using the information gathered, I’ll target those compulsory courses considered to be the most demanding, identify reasons for this, and in turn create strategies addressing the unique root causes of the problems within the specific course.

Assignments are another highly stressful limb of the CoL. I’ll push for the improvement of the quality and consistency of exam/assignment feedback and a transparent marking system. I’ll also examine high-stress modes of assessment (such as oral presentations and closed-book exams) and consider how alternative modes of assessment may be beneficial in specific circumstances.

Finally, many students come to Uni from very sheltered Secondary Education and arrive at Uni with inadequate skills and experience in stress management. I plan to conduct stress management workshops and create and distribute a handbook unique to law students to teach practical and positive skills in handling the pressures that exist in the CoL.

 

Maddison Perkins

My vision for the CoL is advocating for the wholistic wellbeing of its students. Ellie Dowling and I have compiled these approaches to achieving this aim. Firstly, advocating for the focus on mental health by conducting surveys and consultations to pinpoint compulsory courses that are causing students the most stress. By targeting these courses we will be able to develop specific and effective means of mitigating stress. We want to acknowledge the work of other law based groups within the university such as the LSS, and the ILS and organise regular meetings to facilitate collaboration and information sharing. We also want to amplify student support and engagement by providing resources and organising programs to support certain demographics that struggle to engage. These groups include the second semester intake, first years and students interested in internships and exchanges.

In all honesty I have had limited involvement with the law school. The extent of my involvement has been predominately through my courses and attending pre exam tutorials and speaker events such as the Justice Kirby event last year. However this does not mean I have had no experience with student advocacy. I am currently a gen rep on ANUSA and have used this role to learn how student advocacy through a student representative body can be effective. The skills I have learnt through ANUSA and the Mental Health Committee are transferable to the college representative role and engagement with the law school.

Q: Part of being an ANUSA CoL rep is ensuring law students’ voices are heard by law school staff. How do you intend to improve consultation between staff and students?

A: Improving communication between students and staff is a main focus of the Amplify team. As college reps sitting on the education committee for law, it is not only the perfect opportunity to ensure students voices are being heard but also a way to ask questions that clarify the changes to programs and courses in order to relay this important information back to students. In order to ensure this opportunity is used to the best of our ability we will be running consultation sessions both in the law school and through social media before each meeting to ensure the views of all law students are being represented. We will use this opportunity to ensure that we communicate changes to CoL students, regarding courses and degree structures, as well as changes to exchange and overseas programs.

 

Sammy Woodforde

There are three things I envision improving at the CoL in 2017: assessment, mental health and wellbeing, and opportunity. Firstly, while assessment is a large part of the law school experience it’s one of the biggest stressors in a student’s life. With this in mind, I would like to work to connect students with staff, and gain an idea of what formats work. Similarly, as we move into more digital formats I would like to keep the faculty accountable for decisions. Secondly, law student wellbeing is a priority both as an individual and (hopefully!) as a student rep. Increasing support for first year students, beginning in semester one and two, through skill sessions and a revised PAL system is key, as is upskilling lecturers to help them engage with students of all years when mental health becomes a barrier to study. Finally, whilst the CoL offers so many fantastic domestic and international opportunities, lack of awareness and opaque application procedures can make it difficult for students to fully embrace these opportunities, something I will work with the CoL on.

Through the Law School, I have been involved in the Law Reform and Social Justice Legal Literacy Prison Visits Program. I’ve also had the opportunity to do some volunteering at the Youth Law Centre over winter.

Through the LSS I have really enjoyed competing in the comps. Having given Negotiations, Mooting, and Client Interview a shot, I have been able to enjoy the wide spectrum of opportunities in this area the LSS offers. Last year my Client Interview partner and I represented ANU at the Australian Law Students Association annual conference which was a lot of fun, and an interesting way to meet people from Law Societies across Australia and gain a lot more of an idea of how other Law Schools are structured and run.

Q: Law school assessments can be stressful especially for first years who have never seen anything similar. How do you plan to make assessments more manageable?

A: Law assessments are certainly very daunting, particularly coming into first year and being given them for the first time. There are a few things I plan to do to help make assessment more manageable, and not just for first years!

For those coming into first year, I would really like to improve the PAL mentoring program, and work with the LSS and law faculty on running assessment answer sessions earlier in the year. The PAL mentoring program, whilst a fantastic initiative, could do with a few tweaks to more effectively assist first year students at connecting with others and learning useful skills. This would include a more structured program and more comprehensive sessions. Furthermore, whilst the LSS currently provides a number of very useful final-exam tutorials, I would really like to help run sessions earlier in the semester to coincide with the major assessments of the first year subjects, in order to provide some assistance early on and help people with the daunting tasks of those early take-homes.

In particular, I would like to run a more comprehensive welcome program for students beginning in the second semester. These students do not get all the benefits of those coming in the first semester and have the added disadvantage of facing assessment formats they’ve never seen before, whilst the majority has had a semester’s practice. As such, I would like to work closely with the FAL second semester cohort in improving skills, for example through a crash course seminar.

More generally, I would like to review the current assessment formats through the lens of what both staff and students find valuable. This would take the form of consultation with lecturers and course convenors, and a survey released to law students. Information from this survey can then be used by lecturers when structuring courses, as well as giving the faculty and students awareness of what the stressful points of courses are to better monitor and assist in student wellbeing. I plan to work with and keep the faculty accountable for decisions taken moving forward with taking assessment online and reducing face-to-face hours. Similarly, I would like to work with lecturers of compulsory courses in being aware of which courses students tend to take simultaneously to avoid the same due dates or exam dates, as much as possible, for these courses.

So go, enfranchise yourself, exercise your democratic right and make sure to vote in the coming week!

 

*Amplify: http://bit.ly/2b9fWia

Connect: file:///C:/Users/U5804897/Downloads/CONNECT%20FOR%20CoL.pdf

LSS Events: The Revolution that Never Was: Law Ball 2016

Harry MacLaurin

It’s the most lavish, resplendent social event on the College of Law calendar. Law Ball.The annual opportunity for students to adorn themselves in their finest attire, to dine over the most exquisite mass-produced two-course cuisine, and be regaled with tales of classmates over one of the most generous beverage packages of all the Society balls. Tickets are feverishly sought after and are sold-out as fast as your average tutorial sign-up. Despite their prices – which tting with the splendour of the event, are also extravagant – Law Balls consistently attract unparalleled interest. And with glamorous venues, luxurious table ornaments, live music and endlessly owing champagne, Law Ball is always a night to remember. For many decades, Law Ball has been the jewel in the Law Student Society’s (LSS) crown. It has become an inherent responsibility of the LSS Events Vice President to host this glittering yearly event, and justly it has become the most expensive item on the LSS budget. While the cost and format of the ball has been unquestioningly acceded to by committees-gone-by, this year there was a spanner thrown into the works.

As the LSS does not publish its minutes from its committee meetings (full disclosure: a practice for which I am partly to blame), the uninvolved law student has little idea about the mysterious goings-on inside their representative Society. With Facebook posts, emails and, of course, Peppercorn magazine the main modes of communication, the student cohort were largely unaware of the challenge that had befallen their cherished Ball.

Having flagged this debate at an earlier committee meeting, Social Director Kirsty Dale stood against the tide of accepted wisdom and raised underlying concerns that the Ball is expensive, exclusive and inaccessible. For a university as progressive as the ANU, she said, why do we persist with this antiquated event in its present form? Her concerns were legitimate. Many people had expressed pessimism in the past at the prospect of forking out over $120 for a ticket. Moreover, with last years’ table book- ing asco, many could not even sit with their friends. Kirsty believes the expense and limited number of tickets available restrict many students from attending, given not everyone gets support from their parents while studying, with many students working a number of jobs to support themselves.

Kirsty was instead proposing to turn Law Ball into a stand-up cocktail event, which in the scheme of things, was a fundamental alteration of the traditional event. Her rationale was simple: having no tables nor sit-down dinners would reduce ticket costs and allow up to 800 people to attend, as opposed to 680. She identi ed that there would be less ticketing issues, people could attend in smaller groups and the food might be better as canapes would be served which are easier to prepare in bulk. The criticisms were predictable: it would be a less formal event, people would look forward to sitting on tables with their friends, few other balls do a sit down meal, people would get sore feet, Law Ball’s reputation would go downhill, and the ball is a tradition.

The counter arguments were just as predictable: it would be no less formal because you can still dress up, there is greater opportunity to mingle standing up, the LSS Social Justice event is already a sit down meal, there would still be seats for people to sit if they got sore, people would still buy tickets, and ‘traditions are made to be subverted’. The mood was tense. No one wanted to say they were in support of something labelled exclusive and inaccessible for fear of being politically incorrect. However no one wanted to throw away the traditions of Law Ball either.

Ultimately the final decision came down to practical considerations. There were safety concerns with 800 people swarming over a canape dish. How many venues can host 800? Would there still be busses? And most importantly, how different would the cost be? As it turns out, the costings indicated that a stand up event with 800 people would only cost about $11 difference compared to the sit down event. Despite Dan McNamara’s claim that $11 means a lot for a person supporting themselves, he was fooling no one considering a Quarter Pounder meal with bacon costs more.

The committee put the matter to a vote and Kirsty’s proposal was easily defeated. An audible sigh of relief was heard. The insurrection had been stopped and the Law Ball was safe once more. Such revolutionary ideas would be shelved for the foreseeable future, doomed to failure at future discussions. Yet the debate was now out in the open. The Law Ball tradition was no longer beyond reproach. And while this years’ Ball will be as dazzling and grandiose as always, the need for inclusivity and accessibility will perhaps sit at the back of committee members’ minds as they indulge in dessert. Let them eat cake!

Women in Law Organisation

Mara Lejins, Ruth Parsons, Hannah Cameron and Emily Langford — Co-founders of WILO

 

‘There is a special place in hell for women who don’t help other women’ – Madeleine Albright

The Women in Law Organization (‘WILO’) is a student-run mentoring program for female undergraduates beginning next semester. The program will pair female law students with professional women in the legal sector, as a means to empower and develop women studying law.

Although women represent more than half of law graduates, the course of female law careers do not re ect this positive trajectory. Female law graduates earn 4% less than their male colleagues, and as their careers progress; women are signi cantly underrepresented in senior legal roles. The Law Council of Australia recently released a Model Equal Opportunity Briefing Policy, which highlighted the need to promote programs with female mentors and role models.

WILO not only seeks to build relationships between students and professional role models, but also to increase interactions between motivated female law students. Our university peers will likely be the professionals we interact with in our future careers. Relationships with other law students can be a source of support, friendship, and mutual assistance.

The Mentoring Program will begin next semester. WILO has already started sending out mentoring applications to the private sector, the public service and smaller enterprises around Canberra.

We are always keen to hear from prospective mentors. Mentors will meet with mentees at least twice during the semester and attend our celebratory cocktail party at the end of semester.

We will begin taking applications from mentees via an online form on the LSS website, and applications will likely close in Week 2 next semester. Students applying to the program should have an interest in pursuing the legal profession after graduation or an interest in learning more about a career in law. Successful applicants must be prepared to enter into a respectful and reciprocal relationship with a mentor.

Once our mentees have been selected, we will have an introductory cocktail party in Week 3. Cathie Armour, ASIC Commissioner, will be our guest speaker and will talk on the importance of female mentoring. This event will also serve as a means for our mentees to get to know each other, and begin the exciting journey that is WILO.

Further information will be available on the LSS website shortly, or alternatively we can be contacted on u5570167@anu.edu.au or through the LSS email. We look forward to the commencement of this exciting program and we hope that it will develop into a pillar of the LSS.

Experience: the Mooties

Dan Trevanion

Last summer I was part of the ANU 2016 Jessup Moot team. The Philip C. Jessup International Law Moot Court Competition is in its 57th year in 2016. It is the world’s largest mooting competition, with participants from more than 550 law schools in 80 countries. Teams compete in regional qualifying competitions in a bid to advance to the International Rounds held in Washington.

What is it like to be part of Jessup? Jessup was a collection of events that on their own are miserable and unbearable yet together form an experience so meaningful and exceptional that I would do it all again. Our preparation began in November 2015 after exams ffinished. We worked solidly throughout the summer with 24 hour access to the law library except a short break over Christmas as the library was fumigated. Collaboratively, we completed two written memorials of about 12,000 words each ar- guing each side of the case by mid-January. Next, we had about 20 practice moots with our coaches and guest judges over 3 weeks to prepare for the national rounds in early February.

This was in many ways your typical group assign- ment experience mixed with some fire and brimstone. I met most of my team for the first time just before exams. We broke the ice over 2 for 1 pizza at Debacle that night then forgot about each other until exams were over a month later. We divided the problem five-ways. Then spent the next few weeks silently (for the most part) tolerating each other’s most obnoxious study habits. As the deadline for submissions drew nearer the calls to check out the latest YouTube clip became less frequent.Our arguments and critique became louder and more pronounced. The nights became longer – if you think academics have a cushy lifestyle I can testify that they roam the library at 1am. It was by any measure a terrible way to be spending my summer holidays.

Any description of Jessup must include these mis- erable and unbearable moments. These moments are shared drunkenly by all competitors on the last day of competition at Mooseheads. But there are also the exceptional moments that are unique and meaningful to me. When I first walked into my FAL tutorial room I didn’t realise five years later it would be my safe haven when I needed a break. I also never thought that the ‘freshest’ meal to eat over the summer would be a McDonald’s salad. When someone mentions a pomodoro I think of study not a tomato. When I walk to a particular corner of the High Court I will remember five students and two academic staff in a football huddle ring up for our last moot as UQ shoot us quizzical glances.

I’ve now presented submissions in the High Court of Australia, travelled to Washington to compete among 136 other teams, and all while receiving support and email chains from friends, family and ANU College of Law staff that made us feel like an Australian representative sport team. Never has such a collection of miserable events become something as meaningful and unique an experience as Jessup.

Even now I can picture my team reading this, some rolling their eyes, others editing my writing. Each of us is moving on to different paths in our lives; one of us to The Hague, another Italy, another Yale. But each of us shares a unique and meaningful experience in Jessup. I would do it all again and you should try it too.

Applications for the ANU Jessup Team open around September. Keep an eye out for information sessions. For more information contact Kate Ogg or Imogen Saunders.