New Zealand Law Society - Litigation and technology

Litigation and technology

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It seems there are gadgets and apps for everything these days. In fact I find myself sounding like the old man I never thought I would be when I say, ‘what will they think of next?’

In terms of litigation I cannot help but think that there must surely be a significant technological breakthrough that is about to hit the industry of investigation, the administration of the courts or the process of sentencing and punishment.

I suspect that the answer is that through numerous small advances somewhat of a paradigm shift has or is about to happen in the delivery of justice. Then again that belief could be naïve or overly optimistic.

Successful innovations

In my limited experience of technological advances it seems that the most successful of innovations are those things that allow us to do what we currently do easier and quicker rather than those that attempt to change the paradigm.

Of course paradigm changing innovations do occur but they are often dwarfed in number and collective significance by the smaller, more humble, innovations.

In the context of litigation there are a mix of the small and radical. Of much significance, I believe, is the development of litigation applications that attempt to smooth the often tedious job of discovery.

E-discovery and the general area of electronic evidence are not only ripe for technological advancement but are areas in which technology itself has impacted on the traditional application of legal norms and processes.

Electronic evidence

One example of the latter is the question of whether there is something special about electronic evidence differentiating it from real evidence.

Are separate rules required for dealing with electronic evidence in all its forms or is it possible to merely apply existing norms? What rights to privacy exist in relation to electronic evidence and/or information contained within social media and what applications are necessary for the search, seizure and delivery of such information?

Then there is the vexed question of jurisdiction where evidence is often scattered across servers spread around the globe.

Caution needed

Areas in which I believe caution needs to be taken is with those innovations that purport to relieve us of the judgement-making function of our roles as both lawyers and also judges.

While I have no issue with litigation mapping programmes that can make sense of a vast array of evidence and allow for the identification of connections and conclusions more clearly, I do have questions about the utility of the use of some statistical information in the process of conviction and sentencing.

One such example I recently read about involves the use of statistics on the likelihood of re-offending as a tool in sentencing in the United States State of Pennsylvania (see, “Should Prison Sentences be based upon Crimes that haven’t been Committee Yet”, by Barry-Jester et al).

The referred article makes for interesting reading and although this innovation sits uncomfortably with me I was forced to confront why that was when casually reading it over a cup of tea. After all, many scientific conclusions are based upon degrees of probability and we have little to no problem with those advancements.

Using predictions

Why should we have a problem with this? I suppose for want of a neat structure my concerns with such an innovation broadly come within two limbs. The first limb covers those epistemic considerations and the second the non-epistemic.

The epistemic considerations are more easily addressed than the non-epistemic. Epistemic considerations include the relevance, reliability and probative value of the evidence whereas the non-epistemic concern themselves with public policy issues.

The dubious nature of statistics – particularly those that purport to predict human behaviour – is commonly known. For example, there have long since been outspoken critics of the work of psychologists working in the area of criminal justice and their ability to in any way predict the future behaviour of offenders (most often in the context of parole applications and accompanying reports).

Some of those criticisms have been unduly harsh – polarised positioning seemingly a common trait among evidence scholars (myself at times included). I maintain that given the clear constraints of such material and – when accompanied by an understanding of the frailty of such predictions – making this material available to judges is useful so long as it is not relied upon to the exclusion of the application of discretion.

Punishing future offending?

The Pennsylvania example is, however, quite different.

Not only is it largely a questionnaire-based analysis of likely chances of future offending (and in so doing asks questions concerning race and socio-economic status that can only give rise to broad generalisations) but as it is applied to sentencing it goes to the question of punishment not merely for the protection of society but also the chances of future offending as opposed to punishment for past wrong doing.

While the protection of society and associated attitude of an offender are key considerations for a judge when determining the length of sentence (plus the imposition of other conditions such as supervision), this “innovation” seems to take things much further – it falls firmly into the arena of the non-epistemic.

In quantifying a risk as may be identified as a result of this analysis there is a strong likelihood that the act of sentencing will become disjointed from the offence for which punishment is due.

Assessments showing a strong likelihood of future offending will therefore need to be treated with significant caution if they are to have tangibly negative consequences to an offender. Ironically, my non-epistemic concerns with it may be so great as to suggest the epistemic problem of relevance – ie, given the dangers of overreliance upon such material could it be said to be relevant to the process of sentencing?

It is unlikely (I hope) that such an “innovation” will be applied in New Zealand.

However, the question of innovation more generally is an ever present discourse that must be had here. Whether it be the use of technology to establish virtual courts in regional New Zealand, potentially undermining the fabric of justice being seen to be done in small town New Zealand, or the use of tablets in court proceedings – even those held before a jury – the use of technology and innovation is not necessarily a Kantian good in and of itself.

Dr Chris Gallavin is an Associate Professor and Dean of Law at Canterbury University. He has published extensively on criminal justice and on evidence and procedure in particular. He is the author of the appellant handbook, Evidence (LexisNexis, Wellington, 2008), and regularly undertakes consultant work in the area of the law of evidence.

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