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Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence

This is a short summary of the full text of this article, which has the same title, and which was posted on the SSRN, March 25, 2019, pdf.; 62 pages

The fact that lawyers lack the knowledge to challenge the reliability of technical sources of frequently used kinds of evidence, and the tolerating of its impact upon the ability to “do justice,” is due to the under-performance of a number of institutions within the justice system. As a result, law and the rules of practice and procedure applicable to such evidence are moving in one direction, but the reality of what are now the main sources of evidence is moving in the opposite direction. That is the theme of the full text.

The justice system must be seen as one now having several defective parts, which cumulatively create its major problems, including the inability of lawyers to challenge the reliability of electronic sources of evidence. A comprehensive view of the system is necessary to reveal all of the causes of its major problems and also their needed solutions.

Providing lawyers with sufficient knowledge of technology is now a major problem because most of the evidence used for legal proceedings and legal services now comes from complex electronic systems and devices, including the data that is the basis of expert opinion evidence. Examples of such technology dealt with, that produce very commonly used evidence are: (1) the electronic records management systems that produce electronic records—now the most frequently used kind of evidence; (2) mobile phone tracking evidence; (3) breathalyzer/intoxilyzer devices; and, (4) TAR devices (technology assisted review devices) that are used to conduct the “records review stage” of electronic discovery proceedings.[1] Therefore, this article deals in detail with the factors affecting the relationship between such technology and the rules of procedure affecting legal proceedings such as, electronic discovery, disclosure, preliminary inquiries, the admissibility of evidence, and the application of presumptions and inferences.

But the technical literature warns that we trust the software by which they operate far too much. It warns that software errors and vulnerabilities are very prevalent and costly—error rates in the many complex applications of electronic technology. The application of procedural rules for such proceedings should therefore have regard to, for example: (1) the kind of evidence and witnesses the proponent of “the admissibility of evidence” should be required to produce in order to establish, “circumstantial guarantees of trustworthiness”; (2) at which point “the onus of proof” should be transferred to the opponent of admissibility to provide “evidence to the contrary”; (3) how the obtaining, preservation, and production of such “evidence to the contrary” can be achieved by the opposing party; and, (4) how difficult and costly will it be to do so.[2] The answers to these issues should be seen to be interdependent, e.g., the nature of the technology that produces the evidence in question, should not be allowed to provide the proponent of admissibility an advantage that imposes an unfair onus and burden of proof upon the opponent.

For example, the proponent of admissibility being required to call as witnesses the engineers and technicians responsible for the operation of the technology that produces the evidence in question, makes available to the opponent of admissibility, for cross-examination, the key witnesses who can be knowledgeably questioned about the existence of any such “evidence to the contrary.” Thus, can be avoided, the expense and time required by: (1) the opponent’s having to prepare and present arguments justifying a court order for access to the system that produced the evidence; (2) overcoming the objections of the owner/operator of the technology as to: (a) violations of the confidentiality of business information, including that of thousands of customers, clients, or patients; (b) protecting intellectual property privacy; and, (c) the expense and time lost due to disruptions caused by such outsiders intruding to conduct various examinations; plus, (3) the cost of retaining the necessary experts who would conduct such an examination of that system. See for example, R. v. Oland 2015 NBQB 245, (particularly paragraphs 60 and 64).[3]

What is new to such application of the rules of evidence and procedure is introducing a requirement of “fairness” when answering each of the above four questions, such that a particular answer to one of them does not impact unfairly upon the answer given to the other questions.[4] Therefore a “proportionate balancing of difficulties and costs” analysis is necessary, e.g., what is fair to the proponent of admissibility must also be equally fair to the opponent of admissibility. And such a “proportionality analysis” is required not only for such adjunct proceedings as discovery, and voir dires, and preliminary inquiries, but also to ensure that there will be a sufficient “opportunity to make full answer and defence” within the trial itself, as is required by Canadian Charter of Rights and Freedoms ss. 7 and 11(d).

But such decisions require a sufficient knowledge of the technology that produces the evidence so as to be able to assess such factors as the difficulty and cost of producing the necessary proof of, “circumstantial guarantees of reliability,” and, “evidence to the contrary,” and what will constitute a sufficient, “opportunity to make full answer and defence” at trial. The rules of evidence and procedure should be altered, or made sufficiently flexible so that different technologies can produce different answers for each of those issues.

The weaknesses of the justice system that result in lawyers’ inadequate knowledge of technology, and inadequate procedures by which to challenge technology’s reliability to produce such commonly used evidence, concern its institutions such as: governments, law societies, the courts system, law schools, and those institutions that produce standards that concern the manufacturing, use, and maintenance of such technology. As a result:

(1) governments: (a) under-fund the justice system because it is believed that “there are no votes in justice,” i.e., there are no significant quantities of votes to be gained by spending significant quantities of taxpayers’ money on the justice system,[5] and, (b) do not challenge the performance of law societies so as to make them accountable in fact (as distinguished from “in law”), to the political-democratic process, which accountability would have forced them to evolve (as has almost everything else), beyond the 19th century management structure by which they still operate;

(2) law societies do not: (a) provide adequate means by which lawyers can maintain competence as to their knowledge of technology; (b) sponsor the innovations that would enable lawyers to produce affordable legal services for middle and lower income people, i.e., for the majority of society; and, (c) evolve beyond their, 19th century management structure, institutional culture, and their resulting reputation as being very conservative institutions that resist change to their management structure and their accountability for the existence of the unaffordable legal services problem;[6]

(3) judges and courts are: (a) much concerned about the increasing time and cost of legal proceedings, which has given rise to a strategy of limiting the issues to be decided such that the reliability of the technically complex sources of commonly used types of evidence is not adequately challenged; and, (b) overwhelmed with self-represented litigants (because they cannot afford lawyers), causing judges to warn that their courts are “grinding to a halt”;

(4) law schools: (a) in their evidence courses do not adequately deal with the consequences of such technology as to its necessary impact upon the rules of evidence and procedure; and, (b) the writings of their law professors appear to accept the very obsolete management structure of law societies and their resulting very poor performance, all without significant criticism; and,

(5) the standards development organizations (SDOs) that produce standards, (such as the National Standard of Canada for maintaining electronic records management systems, Electronic Records As Documentary Evidence CAN/CGSB-72.34-2017, declared by the Standards Council of Canada on March 1, 2017, to be a National Standard of Canada)—which systems produce the most frequently used kinds of evidence in legal proceedings, i.e., records—are organizations that lack sufficient quality control procedures and accountability for their performance to the Standards Council.[7]

If its major problems are to be lessened, if not solved, these institutional parts of the justice system must be made to work as a highly integrated and mutually-interdependent whole. Instead, each operates separately to serve its own interests, and so each contributes to the cause of each major problem, or is its victim.

Among those major problems thus caused: because lawyers don’t have adequate knowledge of technology, they cannot argue that rules of evidence and procedure should be made and flexibly applied, so that such rules vary with the nature of the technology that produces the evidence. But because technology is constantly and very rapidly changing, making sufficient knowledge of it adequately available to the legal profession, requires the creation of a new type of specialist lawyer—the legal research lawyer, part of whose required skills is sufficient knowledge of those technologies that produce very commonly used types of evidence. To make such specialists’ knowledge adequately available to all lawyers, they have to be made available in a manner comparable to the way in which all of the varieties of specialist doctors, technicians, and hospital services, are available to the family doctor and to all other parts of the medical services infrastructure. It is an infrastructure made up entirely of mutually-interdependent support services and specialists. There are no general practitioners; not even the family doctor.

However, law societies have no tradition or history of providing such innovations, let alone an infrastructure that can cope with the “access to justice problem.” Therefore, they are institutions that cannot cope adequately with the electronic age. That is because they remain unchanged, so as to be the same institutions that they were when created.

Greatly aggravating this situation is the massive “access to justice” problem that has resulted in the majority of the population (middle- and lower-income people) not being able to afford lawyers—lawyers whose skills could compensate for these failings of the justice system. But during all of the decades of the access to justice problem’s development, the institutions of the justice system have not brought it any closer to a solution.

If because of the above factors and circumstances, sources of evidence cannot be adequately challenged, conclusions as to the reliability of the evidence produced by technology are a pretence, and a justice system that produces fair and adequate legal proceedings is an illusion.

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[1] See: Ken Chasse, “Electronic Discovery’s ‘Review Stage’ Software Programs,” (SSRN, Oct. 1, 2018, pdf., 20 pages).

[2] See: Ken Chasse, “Guilt by Mobile Phone Tracking Shouldn’t Make ‘Evidence to the Contrary’ Impossible” (SSRN, October 13, 2016, pdf., 91 pages).

[3] R. v. Oland 2015 NBQB 245, is a judgment in a pre-murder trial “admissibility of evidence” voir dire, wherein the proponent (the Crown prosecutor) did not have to call as witnesses the engineers and technicians accountable for the performance of Rogers Communications’ very large and complex mobile phone electronic records management system. It contained the data concerning a critically important mobile phone call by which the location of the accused defendant was closely approximated (by expert opinion evidence, see: R. v. Oland 2015 NBQB 244). That made producing any existing “evidence to the contrary” by the opponent (the accused defendant) extremely difficult, if not impossible. For a detailed analysis, see the article referred to, supra note 2. Oland was convicted, but has obtained (by way of a decision on an unrelated issue), a non-jury re-trial, (2016 NBCA 58; the Supreme Court of Canada refusing to grant leave for a further appeal, 2017 CanLII 44310 (SCC)). The trial judge’s decision in the re-trial is not expected, “until mid-June [2019] or later,” (the, AdvocateDaily.com/Canadian Press).

[4] In sharp contrast, the following article expresses the view that in effect states: there’s nothing to worry about; no significant change to the law is required; all that is needed is, “an overlay of common sense”; “The law is well equipped for coping with the law of evidence in a technological age”; see: David M. Paciocco, Proof and Progress: Coping with the Law of Evidence in a Technological Age, (2013), 11 Canadian Journal of Law and Technology 181, at 201 and 228. The author is now Paciocco J.A., a Justice of the Court of Appeal for Ontario. To the contrary, in my view, significant changes to the rules of evidence and procedure will be necessary in order to deal adequately with evidence produced by complex electronic systems and devices; i.e., such is but one example of the many significant changes to the law necessitated by the electronic age.

[5] See: (1) Ken Chasse, “No Votes in Justice Means More Wrongful Convictions” (SSRN, June 10, 2016, pdf., 28 pages); and, (2) Kent Roach, “Wrongful Convictions in Canada” 80 University of Cincinnati Law Review 1465 (2012), (SSRN, September 10, 2013, pdf., 62 pages).

[6] See: Ken Chasse, “Access to Justice—Unaffordable Legal Services’ Concepts and Solutions,” (SSRN, November 8, 2018, pdf., 153 pages).

[7] See: Ken Chasse, (1) “Innovation Canada, IP, and Dependence Upon the Standards Council of Canada,” (SSRN, February, 2, 2018, pdf., 243 pages (soon to be updated with subsequent events); and, (2) “Consequences to Innovation Canada and IP of a Badly Drafted National Standard of Canada,” (Slaw, August 2, 2018, 8 pages).

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