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Challenging Technology’s Ability to Produce Reliable Evidence

Access to Justice (A2J): for our work as lawyers, we don’t know enough about the technology that produces much of the evidence we have to deal with. So how to be educated affordably? This is an outline of three articles that I have recently posted on the SSRN. (Click on each of the three hyperlinked headings below to download a pdf. copy of each.)

1. Technology, Evidence, and its Procedural Rules (SSRN, October 1, 2018, pdf., 64 pages)

The rules of procedure that govern proceedings concerning discovery, disclosure, and admissibility of evidence have to be flexibly applied to fit each different technology that produces the evidence being dealt with. That is particularly important for those sources of very frequently used kinds of evidence, such as:

(1) electronic records management systems (records now being the most frequently used kind of evidence);

(2) mobile phone tracking evidence (because we all carry mobile phones that continuously tell the electronic world where we are);

(3) breathalyzer/intoxilyzer device blood-alcohol-content (BAC) readings (being the foundation evidence for thousands of impaired driving and “over 80” prosecutions—Criminal Code s. 253), and,

(4) TAR (technology assisted review) software programs that are used to conduct the “records review stage” of electronic discovery proceedings that do the “reading-for-relevance” of large quantities of records, including email and text messages.

Much of the evidence now used in legal proceedings is produced by complex electronic systems and devices. But our legal education is inadequate for competently challenging technology’s ability to produce reliable evidence. So, how to deal with the “access to justice” (A2J) problem that is, educating counsel for court affordably for middle and lower income litigants?

Limiting the time and cost of legal proceedings by limiting the issues to be decided is becoming more difficult and unjustifiable. The more complex the sources of evidence are, the greater are the number and complexity of the issues of fact and law that must be decided to determine the reliability of such evidence and the adequacy of its production.[1] And, the more complex a technology, the more ways it has to break down. A motor vehicle has more ways to fail than does a bicycle, and therefore a greater probability to perform inadequately than does a bicycle. And so, each motor vehicle must be expected to generate more complex and costlier legal proceedings than will a bicycle.

Mass transportation based upon motor vehicles has imposed a vastly greater burden upon the justice system and its legal infrastructure than did mass transportation based upon horses 110 years ago. And, motor vehicle technology is still increasing the legal infrastructure necessary to regulate its use adequately—infrastructure that includes not only the volume of laws, regulations, and national and international standards of performance, but also the size of police forces, and the number of government departments, courts, judges, court administrative staff employees, and the number of lawyers, and the involvement of companies providing insurance, construction, and other related products and services.

And electronic technology in all of its applications will be even more varied and demanding of an adequate controlling legal infrastructure. In addition, the transition from pre-electronic to comparable electronic forms of technology and services is happening much faster than has transportation’s transition to motor vehicles from horses. The existence of the necessary regulatory legal infrastructure is inadequate. And, society’s majority that is middle and lower income people cannot afford the lawyers necessary to argue for infrastructure’s creation, let alone its proper application, and those lawyers’ education by retained experts. Can legal education keep up? The complexity of such issues and problems steadily increases because law societies and the method of producing legal services remain fixed and stationary.[2]

Because technology is constantly changing, lawyers’ education has to change accordingly so that they can challenge the reliability of complex technology’s sources of evidence. That includes arguments as to why and how the rules of procedure must be flexibly applied. For example, when determining issues of the, “admissibility of evidence,” what should be the point at which the “onus of proof” can in fairness be transferred to the opposing party to provide, “evidence to the contrary”? Such should be made to vary with, inter alia, the nature of the technology involved, within the particular context in which it is used.[3] But you say, that might best be left to expert opinion evidence. Yes, but most litigants can’t afford that.

Instead, law societies have to formally recognize a “legal research lawyer specialist” for each major area of law, part of whose stock-in-trade would be knowledge of such frequently used, evidence-producing technologies in each such area of law. Such innovation is now necessary: (1) not only because of the volume and complexity of legal literature in each area and the multiple ways of researching it; (2) but also so as to make available to all lawyers such knowledge in aid of preparing competent cross-examinations and arguments with which to challenge the reliability of such frequently used sources of evidence; and, (3) to argue how the rules of procedure that control proceedings concerning, discovery, disclosure, and admissibility, must be applied flexibly so as to be compatible with constitutional requirements as to “fair trial,” and, “an opportunity to make full answer and defence” (Canadian Charter of Rights and Freedoms ss. 7 and 11(d)). But, because few law firms would have sufficient volume of production to be able to employ such highly specialized research lawyers, they would have to be made available in support services operating at cost for each case and counsel served.

However, law societies have no history of either creating specialist legal research lawyers, or support services. They are not going to do it. Consider their performance in regard to even more important major problems. Does any of them have a program the purpose of which is to solve the A2J problem that is the unaffordability of legal services for the majority of the population that is middle and lower income people? And, the per capita number of lawyers in private practice has been shrinking for decades, particularly so, the number of general practitioners.[4] What are law societies doing to defend the market of the general practitioner from the commercial producers of legal services, such as, LegalZoom, LegalX, RocketLawyer, etc., and the many small start-up applications of electronic technology (“apps”) for direct-to-retail sales? Nothing! As to such retail sales by “apps,” see: Ken Chasse, “Artificial Intelligence: Will it Help the Delivery of Legal Services but Hurt the Legal Profession?” [forthcoming in Slaw].

If the law societies won’t sponsor the creation of the necessary support services, we should look to the big law firms, or groups of law firms to do so. Consider the Fasken InHouse model of support service.

Given that technology is pervasive, and a constantly evolving, moving target, how to teach lawyers and law students about such factors as, software error rates, the strengths and vulnerabilities of particular electronic systems and devices, their national and international standards, and the requirements for their adequate manufacture, usage, and maintenance, they being three areas of frequent human failure? Very little of that has an adequate legal infrastructure to control it. Manufacturing motor vehicles allegedly does. Nevertheless, every year its manufacturers must recall millions of automobiles that they have inadequately produced.

In addition to the quality of the manufacturing, use, and maintenance of electronic systems and devices, technology that produces evidence also raises issues as to the reliability of its software. And so knowledge of technology is essential to “doing justice.” Otherwise, by default lawyers treat its sources of evidence as being infallible. It is far from that. The technical literature cautions repeatedly that we trust software far too much.[5] And therefore, so are the rules of procedure that govern the use of such evidence far from being infallibly argued and applied. Blame lawyers; not judges. Judges must decide cases using only the evidence and arguments provided by lawyers. Their purpose is to decide disputes; not to educate lawyers. The legal profession is just another industry that must keep up with technology in law and practice, or be bypassed by technology.

2. Electronic Discovery’s “Records Review Stage” Software Programs (SSRN, October 1, 2018, pdf., 20 pages)

This article describes[6]: (1) the major software programs for reviewing very large quantities of records, including email and text messages, for the “review stage” of electronic discovery proceedings, to determine which records are relevant or potentially subject to a claim of “privilege,” such as solicitor-client privilege, and litigation privilege; (2) the prevalence of software errors and vulnerabilities; and, (3) the excessive trust awarded software.

3. Making Sufficient Knowledge of Technology Available to Counsel (SSRN, October 1, 2018, pdf., 69 pages)

Lawyers’ knowledge of technology—how to provide counsel with sufficient knowledge so as to be able to effectively challenge the reliability of those technologies’ electronic systems and devices that produce the most frequently used kinds of evidence (such as the vertical list of four technologies, immediately under the first heading above). The problem is collectively made up of these specific problems:

(1) lawyers don’t know such evidence-producing technology sufficiently well so as to be able to challenge its performance by effective cross-examination and with their own expert witnesses (if their clients or Legal Aid can afford to retain them);

(2) law schools don’t teach courses on the necessary interdependence between different kinds of technology and the necessary flexibility of rules of procedure as they should be applied in regard to, electronic discovery, disclosure, preliminary inquiries, and admissibility voir dires.[7]

(3) continuing professional development (formerly called, “CLE”) seminars, conference, etc., don’t provide such information about technology;

(4) the problem is a moving target, i.e., technology is constantly and rapidly changing and therefore so will the types of technology that produce the most frequently used kinds of evidence; therefore law school courses and CPD/CLE conferences and materials can never by themselves be a sufficient source for such information;

(5) the huge access to justice (A2J)—unaffordable legal services problem means an ever-increasing number of persons appearing in courts, particularly criminal courts, without lawyers, thus greatly increasing the probability of wrongful convictions and wrongful guilty pleas—such unrepresented persons can’t challenge the complex sources of the evidence used against them;[8]

(6) prosecutors don’t know such technology either, and therefore can’t inform investigating police officers what to watch out for and obtain, and what exactly disclosure to defence counsel should include as to the nature of the technology involved;[9]

(7) the police aren’t trained about such technical sources, such that the prosecutor’s duty to disclose, “the fruits of the investigation” that R. v. Stinchcomb 1991 CanLII 45 (SCC, November 7, 1991), requires be disclosed to defence counsel, may be very inadequate; but defence and prosecuting Crown counsel do not know what they don’t know as to what they should know about technology—that was a big problem in the Oland murder case[10];

(8) because most of the evidence used in both criminal and civil proceedings now comes from the same sources, many of the rules that now burden electronic discovery in civil proceedings, should apply to disclosure in criminal proceedings, but so far, they don’t;

(9) lawyers and police officers don’t know about the National Standard of Canada, Electronic Records As Documentary Evidence CAN/CGSB-72.34-2017;[11] (or the comparable, U.S., Department of Defence’s 5015.2 standard for records management) that establishes the required practices and procedures for the proper operation of such technology as electronic records management systems technology; electronically-produced records now being the most frequently used kind of evidence;

(10) at the pre-trial proceeding that is a preliminary inquiry, defence counsel cannot specify whether “committal for trial is in issue,” or which issues are to be dealt with, and which witnesses are requested to be heard (Criminal Code ss. 535-536.5), if the nature and quality of the manufacturing, use, and maintenance of the technology that produces the prosecution’s evidence are not known;

Defence counsel in criminal courts need a constitutional right to a traditional full preliminary inquiry—with no questions asked as to why—so as to be able to cross-examine witnesses (or demand that witnesses be made available for cross-examination) to learn enough about the technology that produced the evidence to be used by the prosecution at trial. Technology has now made that a badly needed, essential part of the right to a “fair trial” and, “an opportunity to make full answer and defence,” (Canadian Charter of Rights and Freedoms ss. 7 and 11(d)).

But instead, Bill C-75, Second Reading, June 11, 2018 (in Parliament’s House of Commons, Ottawa), proposes to restrict the availability of a preliminary inquiry to offences punishable by life imprisonment, and to strengthen the judge’s ability to limit the issues to be explored, and the witnesses to be heard.[12]

Also relevant to this topic of knowledge of information technology in the collection of evidence are the following posts by John Gregory earlier this year (2018), concerning “Devices Gone Wild” on, “the internet of things”; see: Slaw, September 16th; Slaw, July 18th; and, Slaw, May 3rd.

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[1] As to the Supreme Court of Canada’s expressions of a strong desire to so limit the cost of legal proceedings, see for example, the Court’s “disclosure” decisions in: R. v. McNeil, 2009 SCC 3, at para. 29; being language carried forward from, R. v. O’Connor, 1995 CanLII 51, at paras. 24-25; and, R. v. Chaplin, 1995 CanLII 126, at paras. 32 and 35.

[2] As to law societies, see: Noel Semple, Legal Services at the Crossroads (Edward Elgar Publishing Limited, 2015). “Part II Does Professionalist-Independent Regulation Have A Future” (pp. 91-182; Ch. 5 “Regulatory failure”; and, Ch. 6 “Access to Justice”). Noel Semple is an Assistant Professor at the University of Windsor, in Windsor, Ontario, Canada.

[3] See: Ken Chasse, “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (SSRN, October 13, 2016, pdf.).

[4] See: Ken Chasse, “Access to Justice–Unaffordable Legal Services’ Concepts and Solutions” (SSRN, June 7, 2018, pdf.), section 6, p. 35, “Private Practice is Shrinking,” and, section 11(4), p. 92, “Published Commentary on the Commercial Producers of Legal Services—LegalZoom, etc.”

[5] See: Stephen Mason, (1) ‘“Trust” Between Machines? Establishing Identity Between Humans and Software Code, or whether You Know it is a Dog, and if so, which Dog?’, (2015) Computer and Telecommunications Law Review, Volume 21, Issue 5, 135 – 148 (with Timothy S. Reiniger); at 138; (2) “Artificial Intelligence: Oh Really? And Why Judges and Lawyers are Central to the Way We Live Now—But they Don’t Know it” (2017), 23 Computer and Telecommunications Law Review, Issue 8, 213-225; at 222: “… The computer industry is fully aware that software code is full of errors, yet when locked into litigation, commercial organizations will go to extreme lengths to prevent the other side from being given sight of the evidence.” And see also: Chapter 7, “Authenticating Evidence,” of Stephen Mason’s book, Electronic Evidence 4th ed. (2017), which can be downloaded, online: http://stephenmason.co.uk/books/electronic-evidence http://stephenmason.co.uk/books/electronic-evidence.

[6] I am indebted to Martin Felsky for his assistance in gathering the material I used for this second article. Martin Felsky is a litigation lawyer specializing in electronic discovery services. Currently he is Vice President – Electronic Discovery & Information Governance, Forensic & Integrity Services at Ernst & Young LLP, Toronto, and formerly, National e-Discovery Counsel at Borden Ladner Gervais in Toronto.

[7] See for example, R. v. Oland 2015 NBQB 245, and, R. v. Oland 2015 NBQB 244, being two pre-trial voir dires concerning the admissibility of mobile phone tracking evidence for a second degree murder trial. That evidence was critically important to the resulting conviction; see: R. v. Oland 2016 NBQB 43 (the “decision on sentence”). However, Dennis Oland has been granted a new trial, which defence counsel James R. McConnell, told me on October 5th, was expected to start during the first week of November 2018; see: R. v. Oland 2016 NBCA 58, and, Oland v. R. 2017 CanLII 44310 (leave for a further appeal to the Supreme Court of Canada refused (July 13, 2017)).

[8] The A2J problem is caused by law societies and governments tacitly agreeing to fail to serve the justice system adequately. Governments: (1) fail to challenge the performance of law societies as to making legal services adequately available (i.e., competently provided, ethically provided, and affordably provided, as required, for example, by Ontario’s Law Society Act, s. 4.2); and, (2) governments do not provide sufficient resources for the justice system to operate adequately (e.g., there are never enough courts, judges, prosecutors, and Legal Aid funding); see: Ken Chasse, “No Votes in Justice Means More Wrongful Convictions” (SSRN, June 10, 2016, pdf.). And law societies fail to try to solve the unaffordable legal services problem, which is now devastating the justice system; see: Ken Chasse, “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions” (SSRN, June 7, 2018, pdf.). If their tacit agreement were put into words, it would say, “You don’t bother me, and I won’t bother you.” Such an agreement would violate the Canadian Charter of Rights and Freedoms in several ways.

[9] See, for example, these Supreme Court of Canada “disclosure” decisions: R. v. Stinchcomb 1991 CanLII 45 (SCC); R. v. McNeil, 2009 SCC 3, at para. 29; R. v. O’Connor, 1995 CanLII 51; and, R. v. Chaplin, 1995 CanLII 126, and their voluminous and complex case law progeny.

[10] Supra note 7. In a pre-trial admissibility voir dire, defence counsel quite rightfully complained that there was, “no evidence of the proper operation of the computer system at the time of data collection,” and that, “we do not know what we do not know,” and that, “it is fallacious to assume a computer system always operates properly.” The Crown prosecutor was not required to call as witnesses the computer engineers and technicians who could have been cross-examined as to the nature of the technology involved, its maintenance, and history of performance; see, R. v. Oland 2015 NBQB 245, at paras. 35, 60, and 64. Therefore, it can be argued that the law allowed the onus of proof to provide “evidence to the contrary,” to be transferred too early and unfairly; see supra note 3.

[11] To download a copy of this national standard, CRTL/click on those hyperlinked words. But it has errors that plagued its creation as well as its content; see: Ken Chasse, “Innovation Canada, IP, and Dependence Upon the Standards Council of Canada” (SSRN, February 2, 2018, pdf.).

[12] And see, Lisa Silver’s IdeaBlawg submissions re preliminary inquiries, re Bill C-75, Standing Committee on Justice & Human Rights, i.e., her submission to that Standing Committee of Parliament.

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