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'Real' trial withheld evidence from jury
06 Jun 2017

<b><i>Angus Marshall: unused evidence<br>would have strengthened the case</b></i>
Angus Marshall: unused evidence
would have strengthened the case
A consultant on the Channel 4 series, The Trial, has criticised the production for failing to provide the jury with all the evidence they would have received had the proceedings been real.

The stated aim of the show was to reproduce the criminal justice system as realistically as possible so that a ‘real’ jury could be filmed as they made their deliberations in a fictitious case. The evidence was to be presented by real barristers, a real judge presided, and as much of the evidence as possible was to be generated by forensic scientists and crime scene practitioners so that it was as real as possible.

The jury – 12 randomly selected members of the public – were completely aware that the defendant was an actor but were asked to treat the case just as seriously as they would a real trial, and were given no information about the killing besides the evidence presented in court. As a result, their uncertain reactions as they weigh up the details are just as real as those of the viewers at home.

In a blog post published soon after the end of the broadcast, Angus Marshall, a digital forensic practitioner and Lecturer in Cybersecurity at University of York, wrote: “The series clearly set out to show something about how juries work but, as far as I'm concerned, it did it by avoiding most of the forensic science that would have been presented in a modern trial. The producers relied on CCTV and character witnesses, with just a little bit of DNA evidence thrown in for good measure.

“The production team clearly wanted to make things as difficult as possible for the jury so that their reactions and discussions would be prolonged and interesting. While the deliberations were real, they were not, I believe, properly representative of modern criminal justice,” he said.

“My small role was to produce some reports on mobile phone activity, dealing with recovered text messages, calls made, answered and unanswered, apps used, internet connections, email activity and a whole host of related things that typify the evidence that could be considered in a real case. I even had to produce some reports about how the mobile phones belonging to the main people in the case moved around various locations close to the time of the murder, which required me to produce some simplified, but still fairly realistic cell site data as if it had come from the mobile phone network providers.”

However, with the digital footprint of the average individual continuing to grow, Mr Marshall realised that, if the show had been wholly realistic, there was a risk that the digital evidence would be so persuasive that there would not be enough ambiguity left in the case for there to be anything for the jury to debate.

The show ultimately ended with a hung jury, unable to reach a majority decision. Four members voted guilty, eight voted not-guilty. Only after they had voted were the members of the jury told the truth – that within the fictional scenario created, the accused had been guilty after all.

According to Mr Marshall, the consultants engaged by the production company spent many days producing reports to give realistic evidence to support the fictional account of the crime, but the vast majority of it was not given to the jury.

“In reality, a lot of the scientific evidence would not be presented in person but, as a result of being agreed by both sides, would simply be accepted into evidence, referred to at appropriate points, and made available to the jury for their deliberations. Even if the prosecution had elected not to use the material, it would still have been available to the defence team as unused, and some of it could well have strengthened their [the prosecutors] case.

“I know we had cell site records, GPS data, web searches, WiFi logs, emails, call logs, contact lists and SMS, covering a considerable period of time. I'm also aware that a lot of time was spent on processing the crime scene and the trace evidence from it. I believe that this evidence answered a lot of the "unanswered" questions that the jury were asking amongst themselves in the jury room. I'm sure it could have allowed them to reach a verdict.”

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