RESEARCH PROPOSAL

1.0 TITLE OF THE RESEARCH

A Critical Study of the Legal Implications of Courtroom Technology in the Civil

Justice System of the High Courts in Malaysia, With Special Reference to the
Position in the United Kingdom.

2.0 BACKGROUND TO THE PROBLEM / STUDY

The experience in several jurisdictions around the world suggests numerous legal and
non-legal implications arising from ICT adoption in the courts. For instance, Lederer
argues that the impact of ICT on the administration of justice is questionable. 1 Hulse
suggests that such technologies give rise to the encroachment to the privacy of the
parties and documents following the access to the court records, real-time broadcast,
real-time transcripts and real-time evidence.2 Similarly, Argy and Mason contend that
ICT at the courts also impact the admissibility and treatment of digital or electronic
evidence.3

Within the context of Malaysia, numerous past literature had discussed the overview
of the ICT applications in the courts. Nevertheless, such literature has provided
descriptions of the technical aspects of the ICT at the courts. For instance, Hassan
outlines the various types of ICT applications available at the Malaysian courts
system without delving into the implications of such applications. 4 Additionally,
Saman examines the ICT applications at the courts from the information management

1
Lederer, F. I. (2004, Winter). Courtroom Technology: The Courtroom 21 Project:
Creating The Courtroom Of The Twenty-First Century. Judges' Journal, 43, 39, p. 41. See
also Lederer, F. I. (2004. Spring). Courtroom Technology: For Trial Lawyers, The Future Is
Now. Crim.Just., 19, 14, p. 16.
2
Hulse, R. (2009). Real Time Technology, Trials and the Question of Privacy,
Courtroom 21 White Paper. www.legaltechcenter.net/, p. 15.
3
Argy, P. N., & Mason, S. (2007). Electronic evidence: disclosure, discovery and
admissibility: LexisNexis Butterworths, p. 11.
4
Hassan, K. H., & Mokhtar, M. F. (2011). The e-court system in Malaysia.
International Proceedings of Economic Development and Research, 13, 240-244, p. 241. See
also Hassan, K. H., Yusoff, S. S. A., Mokhtar, M. F., & Khalid, K. A. T. (2012). The use of
technology in the transformation of business dispute resolution. European Journal of Law and
Economics, 1-13, p. 4.
perspective.5 Meanwhile, Mohamed provides an overview of the development of the
electronic court system in Malaysia which however, does not extend to the
implications of the system itself.6

Scarce research found that the ICT adoption at the Malaysian courts had given rise to
numerous problems and implications, comprising both legal and non-legal aspects.
For example, Hamin, Othman and Mohamad have emphasized that the nature,
operations and implementation of the electronic filing system at the Malaysian civil
courts have led to a variety of implications for the legal, economic, organisational and
behavioural aspects, suggesting a wide impact on the judges, court administrative
officers, IT officers and the lawyers.7 Similarly, Hamin, Othman and Mohamad have
also pointed out that the ICT adoption at the courts has also posed numerous security
implications, such as authentication, non-repudiation, privacy, confidentiality and data
integrity implications.8

Replicating the above-mentioned studies in other jurisdictions, and taking into

account the problems associated with the adoption of ICT in the Malaysian courts and
its implications, this research would provide the evidence of such problems and
implications. The dearth of studies investigating this issue thus far had led to the
initiation of this present research. It is therefore pertinent that this research should be
carried out as it would not only provide the investigation of the laws in the books, but
also the laws in the real world.9

3.0 RESEARCH QUESTION

5
Saman, W. S. W. M., & Haider, A. (2013). E-court: Information and communication
technologies for civil court management Technology Management in the IT-Driven Services
(PICMET), 2013 Proceedings of PICMET'13: (pp. 2296-2304): IEEE, p. 2299.
6
Mohamed, D. (2011b). Electronic court system (E-court): development and
implementation in the Malaysian courts and other jurisdictions. The Law Review, 476-489, p.
480.
7
Hamin, Z., Othman, M. B., & Mohamad, A. M. (2015). Implications of the
Electronic Filing System: Some Observations from Malaysia 4th International Conference on
Law and Society 2015. Universiti Sultan Zainal Abidin, Terengganu, p. 3.
8
Mohamad, A. M., Hamin, Z., & Othman, M. B. (2012a). Security Implications of
ICT Adoption in the High Courts of Malaysia International Conference on Computers and
Business Management 2012 Quality Hotel, Singapore, p. 4.
9
Colin, R. (1993). Real World Reseach: A Resource for Social Scientists and
Practitioner-Researchers: Blackwell, p. 25.

2
Based on the above premises, particularly on the emergence of ICT adoption in the
courts and the laws regulating such adoption, four research questions were addressed
in this study. These questions engaged the research at both practical legal as well as
the theoretical levels of analysis. At the first practical level, the first research question
was: what is the implication of ICT adoption in the Malaysian civil courts on the
judges, the court staff, the IT officers and the lawyers? This question focused on the
investigation of the different types of ICT applications being adopted in the courts,
and the different various issues and risks associated with the technologies on the
different users being the judges, the court staffs, the IT officers and the lawyers. The
answer to this research question would be highly pertinent as the researcher sought to
understand both the technical as well as the legal aspects of ICT adoption in the
courts.

The second research question, which is also at the practical level, was: what is the
implication of the ICT adoption on the laws in Malaysia as compared to that in
England and Wales? This question examined the respective laws regulating such ICT
adoption in the courts of Malaysia and England and Wales and the reciprocity
between the law and technology in such a situation. The question was central for the
researcher to highlight and debate how the law responded to such issues or risks
raised by the technologies, while at the same time enabling the researcher to examine
how the technologies responded to the laws introduced or created in that respect.

The third research question in the study, which is at the theoretical level of analysis,
was: how could the theories of unified acceptance and use of technology (hereinafter
UTAUT) and risks perception mediate the understanding of the benefits and risks
involved in ICT adoption in the courts? The examination of the UTAUT theory is
significant in determining the implication of the users’ choice in appreciating the
benefits of the use of technologies in the courts. For instance, by engaging in the use
of the technologies, would their work performance improve, or their work effort is
simpler, or their social influence plays a role or are there any other facilitating
conditions which lead the users to finally adopt technologies in their works?
Meanwhile, the examination of the theory of risk perception involves the
understanding of the users in perceiving the issues and risks associated with such
adoption, such as the risks of security, evidentiary, financial, time as well as social.

3
Consequently, the researcher is able to describe the implication of such choice to the
legal governance of the ICT adoption by the Malaysian courts. For these reasons
aforementioned, the research probes into the minds of the users of the technologies on
the governance of perceived risks within the ambit of the risk society.

The fourth research question is: how the existing law could be strengthened and how
non-existing law could be created to improve the delivery of the justice system in
Malaysian civil courts through ICT adoption in the courts? The answer to this
research question is significant in providing the outcome of the study after addressing
the first two research questions on the laws regulating the ICT adoption in the
Malaysian courts as well as the courts in the UK.

4.0 OBJECTIVES OF THE RESEARCH

The objectives of the research are:

1. To investigate the implication of ICT adoption in the Malaysian civil courts on

the judges, the court staffs, the IT officers and the lawyers.
2. To analyse the implication of the ICT adoption on the laws in Malaysia as
compared to that in England and Wales, with the view to appreciate the legal
scholarship of this subject matter and lessons to be learned from a country set
as the benchmark.
3. To examine the theories of unified acceptance and use of technology
(hereinafter UTAUT) and risks perception in informing the understanding of
the benefits and risks involved in ICT adoption in the courts.
4. To propose measures how the existing law could be strengthened and how
non-existing law could be created to improve the delivery of the justice system
in Malaysian civil courts through ICT adoption in the courts.

5.0 SCOPE OF THE STUDY

The thesis of this research is to critically examine the legal implications of courtroom
technology in the civil justice system of the High Courts in Malaysia. Therefore, the
subject matter of this research will be the concept of courtroom technology. In terms

4
of the legal implications, and based on the literature survey and the current
applications of courtroom technology adopted in Malaysia,10 the discussion on the
legal implications will be in relation of the rules of procedure, namely the Rules of
High Court 1980 and the provisions on procedures contained in specific statutes, the
rules of evidence, namely the Evidence Act 1950, the rules relating to computer
crimes, namely the Computer Crimes Act 1997, the rules of personal data protection,
namely the Personal Data Protection Act 2010, practice directions and the process,
practices and procedures of courtroom technology itself. In addition, the country
location will be Malaysia and the United kingdom, with a focus on the civil system at
the High Court level.

6.0 RESEARCH METHODOLOGY

This research will adopt a qualitative method as it provides a deeper understanding of

social phenomena,11 particularly on the process, practices and procedures of
courtroom technology and the legal implications arising from such technologies.

This research is divided into two parts, the first part of this research is the collection
of primary data which will involve field work in which the data will be generated
from two case studies that focus on one High Court in West Malaysia and another
High Court in East Malaysia. The instrument that will be used is face-to-face semi-
structured interview which is chosen as it gives the researcher the opportunity to
explore the respondent’s opinion of an issue in depth, rather than to test knowledge or
simply categorise.12 The respondents are individuals involved directly with the
application of courtroom technology at each of the courts, being the judge, the court
officer, the information technology officer at the court, the system developer, the legal
practitioner, and the client. In total, twelve respondents of primary data from two case
studies will be interviewed. Besides that, as independent stakeholders of information

10
See Kuching High Court Document, “Brief Introduction On the Integrated Court
System (ICS) in the Courts of Sabah and Sarawak” online, accessed on 1 February 2010, Nais,
N, “Impressed, Nazri wants all courts to go electronic” (17 August 2009) The Star, Veera, S,
“New Courts, New System to Speed Up Cases” (2 September 2009) New Straits Times and
Koshy, S, “Zaki launches E-Court System” (2 September 2009) The Star.
11
Silverman, D, Doing Qualitative Research: A Practical Handbook. (Sage
Publications London 2000) P.8.
12
Stroh, M., “Qualitative Interviewing” in Burton, D, Research Training For Social
Scientists. (Sage Publications London 2000) Pp. 198-199.

5
on courtroom technology, two academicians will also be interviewed for the purpose
of triangulation with the findings of the case study and to provide better analysis and
discussion of this research.

Accordingly, a list of questions is prepared. The interviews will enquire into the
perception of the respondents of relevant issues including their involvement in the
technology adoption at the courts, the risks of the application of courtroom
technology, and how do they cope with the risks at hand. With the consent of the
respondents, an electronic voice recorder will be used throughout the interview
sessions. The recordings are useful to check for wordings of any statements that the
researcher wishes to quote.13 The recordings will then be saved onto the computer,
transcribed and analysed using Atlas.ti software14 which is chosen because it is
adequate for the purpose of the research, being more practical and speedier than
manual method of analysis.

The second part of this research would be library based research which will draw
upon primary and secondary sources. Primary sources will include the laws in
Malaysia and the United Kingdom while secondary sources will include documents
collected from the respondents during the semi-structured interviews, policies of the
government, the state and the judiciary, the rulings of the Malaysian Bar Council, the
state bars, practice directions and online databases such as Lexis.com, LexisNexis
Academic, WestLaw International, Ebscohost, CLJ Legal, Lawnet, Science Direct,
Springer Link and ProQuest.

7.0 LIMITATIONS OF THE STUDY

It can be foreseen that there are several limitations to this research, for instance,
accessibility of the respondents following reasons such as their busy schedules or
unwillingness to participate in the semi-structured interviews. In terms of field work
planned to be conducted in East Malaysia, distance and financial limitations are
foreseen. Therefore, advanced planning should be considered for the travel to East

13
Bell, J.Doing Your Research Project. (Open University Press Milton Keynes 1987).
14
See www.atlasti.com/

6
Malaysia, prior arrangements with the respondents and appropriate follow-ups prior to
the appointed dates.

8.0 SIGNIFICANCE OF THE STUDY

There is a growing body of literature relating to the issues of globalisation, the

information society, the network society, the Internet and the ICT. The literatures also
relate to the application of ICT in the delivery of public services, the benefits and
significance of courtroom technology and the legal implications arising from these
technologies. Accordingly, it is hoped that the main themes being developed in the
literatures can be related to the empirical evidence from the findings of the two case
studies to be conducted for this research at the civil justice system of the High Courts
in West and East Malaysia. Therefore, the significance of this research is that the
findings of this research would contribute to the body of knowledge on courtroom
technology, which would attempt to examine and address the legal implications of
courtroom technology within the context of the High Courts in Malaysia. The findings
and recommendations of this research would benefit the judiciary, the legal
practitioners, the litigants and the policy makers, particularly to improve the delivery
of civil justice in Malaysia, with the view to eliminate or minimize the risks arising
from the adoption of courtroom technology.

9.0 LITERATURE REVIEW

Courtroom technologies have been adopted in many jurisdictions such as Malaysia,

the United Kingdom, the United States of America, Spain, Italy, Singapore and
Australia. Within the Malaysian context, in its effort towards implementing ICT in the
courts, the integrated court system (ICS) is adopted in both the courts in Peninsular
Malaysia and in Sabah and Sarawak. The ICS includes applications for court
management system, case tracking system, video conference system, court recording
and monitoring system, and integrated community and advocates portal system. The
technologies include audio and video facilities, recorder and transcriber systems, e-
filing, e-registration, e-payment, e-tracking and short message system. The judiciary,
the legal practitioners and the government of Malaysia had expressed their support for

7
the ICS, as it is believed that ICT will help in the judiciary’s endeavour to reduce the
backlog of cases, and to dispose cases in a more timely manner.15

As for the position in the United Kingdom, some of the technologies used in the
courtrooms are audio and visual facilities, electronic filing, e-mail facilities, online
inquiries, virtual court hearings, display of graphs and scanned documents,
computerised reconstructions of critical events, video conferencing and text
messaging system. 16 On this note, Scott17 outlines the application of computers in the
courts, and specifically for courtroom technologies, technologies assist in the trial
situation in the storage and presentation of large quantities of information.

Wiggins18 describes the extent to which technology is available in the courts system of
the United States of America as including evidence camera, digital projector and
projection screen, wiring to connect laptop computers, monitors built in the jury box,
monitor at the bench, monitor at the witness stand, at counsel table or at the lectern,
screens targeted at the audience, colour video printer, annotation equipment, sound
reinforcement system, telephone or infrared interpreting system, a kill switch and
control system, an integrated lectern, audio-conferencing equipment,
videoconferencing equipment, real-time software for use by court reporters, real-time
transcript viewer annotation system, and digital audio recording. The United States of
America is described as having the most advanced and sophisticated courtroom
technologies compared to other jurisdictions.

The ICT adoption in Spain is developed in four areas of action within the judicial
services.19 First is the management and processing of information, such as databases
and data exchange. Second is the management processes, including the allocation and
management of cases. Third are the tools for judicial decision support, such as
computer-aided decisions. And the fourth is to enable communication and interaction

15
Note 13.
16
Brooke, H., “The Legal and Policy Implications of Courtroom Technology: the
Emerging English Experience” 12 Wm. & Mary Bill of Rts. J. 699.
17
Scott, I. R., "Computers in the Official Referees' Court" (1989) C. J. Q., 8(Apr), 105-
108.
18
Note 12.
19
Cerrillo, AM, “E-Justice in Spain” in Cerrillo, A and Fabra, P (eds.) E-Justice:
Information and Communication Technologies in the Court System. (Information Science
Reference United States of America 2009).

8
between the public and the court officers, especially in the field of automatic
notifications and electronic filing of pleadings. In this context, Delgado and Oliver 20
outline the recent developments of courtroom technologies in Spanish courts, being
the setting up of computer systems incorporating tools for recording, sharing,
document management and communication between parties, video conferencing,
recording systems and various legal portals.

In Italy, ICT is argued to having not yet been the enabler of change expected of it, as
technology has not really challenged the actual judicial organisational structures 21 and
the procedures or the micro-ecology of actions.22 Fabri23 examined a number of
technology applications adopted by the Italian courts within the criminal and civil
matters, including case tracking system, tracking of the execution of sentences, e-
filing system of injunctive orders, provision of database of courts and law documents
via the internet portal.

The thrusts for the adoption of technologies in the Singapore courts are the delivery of
virtual court services and applications, computerization of court management
processes, co-development of multi agency systems, and computerization of court
administration and corporate services.24 Within the context of courtroom technologies,
the virtual court services adopted in the Singapore courts include electronic filing
services, automated traffic offence management systems, justice online system and
video-conferencing. For criminal cases, the Singapore Case Recording and
Information management System enable the court to receive case information from
prosecuting agencies, register the criminal charge online, update the case outcome and
culminate in the automatic generation of the warrant of commitment in the event of a
conviction when an imprisonment term is imposed. 25 Within the South East Asian
region, the ICT adoption within the courts of Singapore has been described as the
20
Delgado, AM, and Oliver, R, “Recent initiatives of e-justice in Spain” in: "eJustice
[Monograph online]. IDP. Law and Politics. No. 4. UOC. Online, available at
www.uoc.edu/idp/4/dt/esp/delgado_oliver.pdf/ accessed on 18 March 2010.
21
Barely, S. “Technology as an occasion for structuring: Evidence from observations of
CT scanners and the social order of radiology department” (1986) Administrative Science
Quarterly, 31, 78-91.
22
Bateson, G, Steps to an Ecology of Mind (Chandler New York 1972).
23
Fabri, M, “The Italian Style of E-Justice in a Comparative Perspective” in Cerrillo, A
and Fabra, P (eds.) E-Justice: Information and Communication Technologies in the Court
System. (Information Science Reference United States of America 2009) P. 4.
24
Magnus, R, “eJustice – the Singapore Story (SuperSession)” Sixth National Court
Technology Conference, September, 1999, Los Angeles California.

9
most advance and sophisticated compared to other countries in the same region.
Evidently, the other countries are taking steps towards adopting technologies in their
respective courtrooms.

Macdonald and Wallace26 review the courtroom technology applications in Australia

as comprising of a networked computer operation providing electronic document
management and exhibit handling and display, equipped with sophisticated storage,
imaging, searching, and retrieval capabilities, as well as real-time electronic transcript
and electronic communications facilities. Intranet and Internet technology is used to
establish secure networks for the parties to access court documents, files, and
transcripts and also communicate by e-mail. Transcript analysis tools are provided for
the parties and the judge. In addition to documentary evidence in electronic form,
these systems also allow the addition of video and audio evidence in digital format.
An electronic courtroom is also equipped with facilities enabling it to receive
evidence by video link, and in some cases, to broadcast a hearing itself. According to
Wallace27, a number of courts in Australia have experimented with the use of
technology such as discussion boards or bulletin boards, in conjunction with secure e-
mail systems to handle pre-trial hearings in systems which are generally referred to as
e-courts.

It is believed that there are many benefits that could be derived from the adoption of
courtroom technology. A number of literatures suggest that the technologies will
make the courtrooms geographically accessible anywhere and anytime – omnipresent
and available to all28 in particular to introduce more efficiency into the judiciary, 29
reducing delay, improving the economy, and the more general objective of promoting
confidence in the justice system through the use of technologies.30

25
Wong Peck “E-Justice – Transforming the Justice System”, Australian Institute of
Judicial Administration Law & Technology Conference, June 26, 2008, Sydney.
26
Note 10.
27
Wallace, A, “E-Justice: An Australian Perspective” in Cerrillo, A and Fabra, P (eds.)
E-Justice: Information and Communication Technologies in the Court System. (Information
Science Reference United States of America 2009).
28
Note 1.
29
Kis.kis, M and Petrauskas, R, “ICT Adoption in the Judiciary: Classifying of Judicial
Information”, International Review of Law, Computers & Technology, (2004) Volume 18, No.
1, Pp. 37-45.
30
Velicogna, M, “Justice Systems and ICT: What Can Be Learned From Europe?”
Utretch Law Review, (June 2007) Volume 3, Issue 1, online, available at
http://www.utrechtlawreview.org/publish/articles/000041/article.pdf accessed on 1 September

10
Carnevali31 believes that these technologies will contribute towards improving the
quality of justice. On the same notion, writers advocate that technologies would lead
to a more efficient and effective judicial system, improved transparency of the way
the judiciary works, increase in the citizen’s level of access to the judiciary and
increase in the confidence of the citizens and business in the judicial system.32

ICT may provide tools for increasing transparency and openness of the judiciary in
the way that it increases trial speed without sacrificing thoroughness of investigation.
ICT may also improve the quality of the trial proceeding by ensuring efficient
allocation of judicial resources, access and exchange of judicial information,
uniformity of judicial practices and interpretation of the law. 33 In this context,
Velicogna34 contends that ICT is used to enhance efficiency, access, timelines,
transparency and accountability.

The adoption of courtroom technology within the judicial system raises two major
categories of issues, legal and non-legal. Legal issues include risk of privacy
encroachment, security risks, evidentiary issues and question of fairness. Non-legal
issues include question of the quality of the administration of justice and issues on the
acquisition of skills and readiness of the court officials and legal practitioners.

The first risk is relating to security. Hamin 35 argues that the use of technologies could
facilitate many computer crimes or computer-related crimes including hacking, denial
of service, phishing, pharming, identity theft, computer fraud and stalking. In this
context, West36 admits that courtroom technology, especially digital documents, come
together with speed and efficiency, but cautions that there are security issues that are

2009.
31
Carnevali, D, “E-Justice and Policies For Risk Management” in Cerrillo, A and
Fabra, P (eds.) E-Justice: Information and Communication Technologies in the Court System.
(Information Science Reference United States of America 2009).
32
Note 3, Pp.xiii-xiv.
33
Note 33.
34
Note 34.
35
Note 8. See also Hamin, Z., Computer Misuse Within Organisations: A Study of the
Application of the Computer Misuse Laws in the UK and Malaysia, Unpublished doctoral
dissertation. The University of Leeds United Kingdom 2002.
36
West, R. “Tradition, Security Stall Court Technology” (Mar 2002) American City &
County, 0149337X Vol. 117, Issue 3, p.12, online, available at www.ebscohost.com/, accessed
on 1 July 2009.

11
yet to be resolved to the satisfaction of many judges. He questions hypothetically the
following situations:

How would someone charged with a crime, but not yet convicted,
react if the charges and possibly some of the evidence were leaked to
the press or to interested parties? What about the safety of stored
juvenile court records, where security is at a premium?37

The second risk is the risk of privacy encroachment. Within the technology of
courtroom for broadcast and transcription, which includes applications for direct
broadcast of trials and real-time transcription of proceedings, Hulse38 poses the issue
on what are the privacy implications of releasing real time transcripts. He questions
hypothetically the following situations:

What happens when “unofficial” transcripts are released online in real

time, before the court reporter has had the time to develop the
“official” record, or even a clean copy free of the most obvious
errors?39

Hulse further describes that one of the biggest privacy issue concerning real time
broadcasts is what she termed as the “classic toothpaste problem”. For instance,
information can be stricken from the official record of the proceedings, and motions
can be filed to block the footage from being released. By applying the “classic
toothpaste problem”, with the adoption of real time broadcasts, the toothpaste could
not possibly be put back in the tube. This would definitely prove damaging to both
litigants and non-litigants appearing at trial.

Another risk of the adoption of courtroom technology is relating to evidentiary issues,

of which Lederer40 indicates that the different types of technology-related evidence
can raise issues such as authentication, best evidence, hearsay, and unfair prejudice. In
discussing the issues, different types of evidence and different types of issues were
addressed. For instance on the issue of authenticity of the scanned image if it contains
the same text or other depiction found in the original, and electronically displayed
37
Ibid, p. 12.
38
Hulse, R, “Real Time Technology, Trials and the Question of Privacy”, Courtroom
21 White Paper, online, available at www.legaltechcenter.net/ accessed on 1 November 2009.
39
Ibid, p. 1.
40
Lederer, FI “Courtroom Technology In The New Millennium, The Virtual
Courtroom Is Upon Us” May 2000, Conference on Life and Health Insurance Litigation.

12
images may well not reproduce creases, folds, and the like causing the authenticity
and admissibility of the evidence to be questionable. Apart from that, other issues
may also be raised from digital evidence, such as susceptibility to alteration or
fabrication, including foundational issues, potential scientific evidence and expert
issues.41 To this, Bailenson et. al.42 agree that the technology may be used in
inappropriate ways, as there is potential for manipulation of the evidence. Storck and
Sproull43 asserts that the limits of the technology could also potentially affect how the
judge perceives the defendant, for instance, video transmission may exaggerate or
flatten the defendant’s affect, which in turn could influence the judge’s reactions to
him or her.

Wiggins44 suggests that the rules of evidence need to be augmented to account for the
use of technologies. This follows that although testimony and documents are still
admitted as evidence, jurors come to understand the implications of the testimony and
documents through digitally presented illustrative aids. Similarly, Carnevali 45
observes that almost all European countries, the United States of America, Australia
and Singapore have changed their evidentiary rules in order to allow for the exchange
of documents legally in the justice sector. Following this, these countries have
attempted to develop and adopt technologies capable of complying with those rules.

As for the Malaysian position, the Evidence Act 1950 was amended in 1997 to
recognise a computer document for evidential purposes in the court, and the E-
Government Activities Act 2007 provides legal recognition of electronic messages
and the fulfilment of legal requirements by electronic means, including for writing,
signatures, seal, certified true copies and service and delivery.

41
Lederer, FI. “Courtroom Technology: For Trial Lawyers, The Future Is Now”
(Spring 2004) 19 Crim. Just. 14.
42
Bailenson, JN et. al. “Courtroom Applications of Virtual Environments, Immersive
Virtual Environments, and Collaborative Virtual Environments” (2006) Law & Policy, Vol.
28, No. 2.
43
Storck, J and Sproull, L. “Through a Glass Darkly: What Do People Learn in
Videoconferences?” (1995) Human Communication Research 22, Pp. 197-219.
44
Wiggins, EC, “The Courtroom of the Future is Here: Introduction to Emerging
Technologies in the Legal System” (April 2006) Law & Policy, Vol. 28, No. 2.
45
Note 34.

13
Another aspect of evidentiary issues relate to the application of video conferenceing.
On this aspect, Johnson and Wiggins 46 questions the more salient behavioral issues on
identifying the demeanour of the witness or accused relating to the use of
videoconferencing in criminal matters. However, in the Malaysian context, the extent
of the use of videoconferencing facilities by the courts is rather limited. For example,
in Kuching High Court, hearing is conducted by using video conferencing facilities
only for civil matters such as simple mention matters, interlocutory matters such as
application for injunctions, summary application for judgment and striking out of
defences. It is suggested that relevant legislations must be in place before video
conferencing facilities can be used for contentious civil cases and criminal matters.47
Until then, it will be a matter of timing before the issues on identification of the
demeanour of the witness or the accused might be considered by the judges in
contentious civil cases and criminal matters.

The next issue raised by the adoption of courtroom technology is on the question of
fairness. Lederer48 points out that with the advancement in the adoption of courtroom
technology, the question of fairness comes into picture and remains unaddressed. This
is particularly when a technology-assisted large firm lawyers would be viewed as
being unfair when opposed by a small-town-type traditional lawyer. This follows that
the use of the technology affects individual perceptions of fairness, and the mere use
by one side of technologically presented evidence cause immediate but otherwise
absent concern about “unfairness”. Lederer contends that the question which remains
unaddressed is the extent to which the technologies disadvantage some parties,
counsel or others.

Within the context of criminal matters, Wiggins 49 questions the implications of

videoconferencing, in that the technologies might interfere with the right to due
process and adequate representation by counsel.50 She also argues that the use of
technology might help level or further causes imbalance in the playing field for

46
Johnson, MT and Wiggins, EC, “Videoconferencing in Criminal Proceedings: Legal
and Empirical Issues and Directions for Research” (2006) Law & Policy, Vol. 28, No. 2.
47
Kuching High Court Document, “Brief Introduction On the Integrated Court System
(ICS) in the Courts of Sabah and Sarawak” online, accessed on 1 February 2010.
48
Note 43.
49
Note 12.
50
Ibid.

14
parties and lawyers.51 Lastly, she is sceptical that the use of technology might interfere
or help protect the rights of parties to litigation.52 Johnson and Wiggins53 argue that
with the usage of videoconferencing in criminal cases, the defendant’s fundamental
rights, including those to due process, representation by counsel, and confrontation of
witnesses might be violated when a defendant or witness appears remotely during a
criminal proceeding.

One of the questions which remain unanswered is whether courtroom technology

actually helps or hurts the administration of justice. In other words, do the
technologies actually improve the administration of justice? 54 Another pertinent
question is the extent to which the increased use of courtroom technology will affect
both the reality and perceptions of fairness and justice. 55 Contini56 observes that the
European judiciaries are quite poor at evaluating and measuring the actual
contribution made by technology to the administration of justice, and the impact on
the quality of justice is even less considered. It is apparent from this debate that there
is hardly immunity from the ‘technology for technology’s sake’ syndrome as
technologies are adopted to facilitate the justice process, and at the same time, there
are risks involved.57

The final issue of courtroom technology relates to the transformation from a

conventional system of judiciary into the adoption of modern courtroom technologies.
The inevitable issue raised is the acquisition of skills and readiness of the court
officials and legal practitioners. In this regard, Wong Peck58 contends that the
successful implementation of the technologies requires the concerted effort of judges,
court administrators, court users, system developers and information technology
experts. There is definitely the need for effective training for judges, court staff and

51
Ibid.
52
Ibid.
53
Note 49.
54
Lederer, FI. “Symposium: International Conference on the Legal and Policy
Implications of Courtroom Technology: What Have We Wrought?” (2004) 12 Wm. & Mary
Bill of Rts. J. 637.
55
Note 37.
56
Contini, F., “Conclusion: Dynamics of ICT Diffusion in European Judicial Systems”
in Fabri, M and Contini, F. (eds.) Justice and Technology in Europe: How ICT is Changing
The Judicial Business (Kluwer Law International The Hague The Netherlands 2001).
57
Note 2.
58
Note 24.

15
practitioners hence the need for a close liaison and good communication between
courts and law firms towards the implementation of courtroom technologies.59

Bhatt60 agrees that it is a major judicial issue on the lack of training available to the
members of the judiciary on the latest gadgetry, applications and services. Further,
many senior members of the judiciary may not have the opportunity nor time to
familiarize themselves with these new applications. In addition, the availability of
trained manpower, the available hardware and software applications and courtroom
facilities will also need to be considered. There is specific need for lawyers to get
careful training and practice to use the technology efficiently and effortlessly
expected of them by judges.61 Similarly, Epstein62 claims that lawyers are notoriously
slow in adapting technology into their practice and in fact, many technology experts
opine that lawyers were never in the race to adopt technologies within their practice.

In conclusion, since Malaysia has started to adopt technologies in its courtrooms, and
research has shown that courtroom technology is likely to develop more in future, 63
the numerous implications which have been discussed above suggest the need for a
study to be conducted in this area with the view to eliminate or minimize the risks
arising from the adoption of courtroom technology.

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20