After a one-year hiatus, we are back with the fourth of a series of blogs highlighting the various papers, studies, and pilot projects conducted by the Cyberjustice Laboratory and its partners throughout the seven-year long “Towards Cyberjustice” Project (the previous parts can be found here: part 1, part 2, part 3). Funded by a Major Collaborative Research Grant from the Social Science and Humanities Research Council, this project has finally drawn to a close and will be the subject of a detailed report to be released later this year. In anticipation of this upcoming report, this blog post will be dedicated to a brief description of its third chapter entitled “Bringing Technology Inside the Courthouse”.
While the general principle of bringing technology inside courthouses is no longer controversial or unprecedented – many courts around the country and the world have done so – what remains at issue is how and why this technological shift is taking place. As numerous authors have pointed out, technology is not neutral. In fact, as Donald A. Norman explains, “[e]ach technology has properties – affordances – that make it easier to do some activities, harder to do others. The easier ones get done, the harder ones neglected. Each has constraints, preconditions, and side effects that impose requirements and changes on the things with which it interacts, be they other technology, people, or human society at large”. Therefore, there needs to be a comprehensive study and analysis of the reasons behind bringing a given technology inside the courtroom (does it answer an actual need or a perceived want), as well as the impacts this technology will have on the legal process, system and stakeholders.
The chapter begins by examining the various courthouse technologies currently available and identifying the numerous benefits associated with their use. As we mentioned on previous occasions, information and communications technologies have the undeniable capacity to increase access to justice by boosting efficiency and reducing costs, which in turn reduces court backlogs and makes it possible for citizens to seek justice in a timely fashion. Modern technology allows flexibility that is tremendously advantageous to both the legal community as well as individuals appearing before the courts. As is now widely recognized, technology makes it possible for individuals to appear remotely via tele-immersion technologies if they are unable to appear in person, which is crucial when it comes to enabling equal access to court services for those in remote regions. However, what is less often discussed is that these same technologies also make the courthouse more accessible to individuals with visual and auditory disabilities.
Moreover, legal processes are significantly simplified by the availability of various technologies that enable electronic filing of court documents, electronic case management, electronic discovery, as well as electronic access to court decisions and records. Other legal technologies help facilitate litigation by making it possible to present evidence in digital format and even create real-time transcriptions of testimonies, which can be helpful to lawyers trying a case as well as individuals with disabilities who require such assistive technologies to be able to participate in court proceedings. Finally, the availability of courtroom technologies facilitates the role of the jury, who is able to access all relevant documents and records simply and quickly in order to aid in the decision-making process. A 2016 Australian study conducted by members of the Towards Cyberjustice team revealed that the use of iPads to access case documents and records in order to assist in jury deliberations does not detract from the deliberative process nor does it prejudice the jury or compromise the right of the accused to a fair trial.
The chapter then goes on to describe all the obstacles to the more extensive use of technology in the justice system, despite its undeniable benefits. The first of these obstacles revolves around privacy concerns. Canada’s adherence to the open court principle means that access to almost all aspects of court cases is available to the public. Prior to rendering these records available online, these documents have always enjoyed a practical obscurity that “protected privacy by minimizing the likelihood of widespread public inspection of personal information about witnesses and litigants.” While the aim of Internet accessible court documents is to remove barriers to public access to court judgments, thus allowing the public to interact with and understand the law and legal outcomes, some question whether it contributes sufficiently to the underlying values of the open court principle to warrant jeopardizing the fundamental human right to privacy.
The second obstacle to a more substantive inclusion of technology in the judicial system is related to the security of judicial data. In addition to the security flaws that often plague modern day interconnected devices, there is some concern that making judicial information available and accessible through province wide IT solutions and systems risks violating the principle of judicial independence – an issue which we elaborated upon in a previous blog post. As we noted, “forcing the courts to use ‘services related to email, data and networks’ that are hosted by Shared Services Canada or, more realistically, private service providers contracted by the government, implies that sensitive court data will no longer be under control of the courts” and that “the courts will no longer be able to guarantee access to court records, since said records will be under the control of civil servants or even private parties that have no clear understanding of a court’s mandate and over which the court has no direct power.” Moreover, this model presents potential conflicts of interest where, for example, “the service provider is party to a trial while having control over all the court data – including the judge’s private emails […].”
A third obstacle standing in the way of more widespread incorporation of technology into the judicial system is associated to the difficulty of replicating courtroom rooted rituals via technology. The judicial system relies on rituals to impose order and safeguard the impartial decision-making process, both of which are integral towards ensuring the predictability of the legal system which has come to be expected by both the administration of justice as well as society. When upgrading certain elements of the legal system, it is therefore crucial to “ensure that the benefits of procedures that reinforce the legitimacy of legal institutions are considered.” For example, the use of videoconferencing to allow the remote appearance of witnesses could negatively influence certain rituals, including confronting and cross-examining witnesses and assessing their demeanor. This can be a hindrance to both judges, who rely on these social cues to assess the witness, as well as lawyers, who may find that the outcomes of their cases are impaired by the ambiguity harboured by fact finders, judges and jury members regarding the use of technology for such purposes.
The fourth obstacle to the further integration of information and communication technologies into the judicial system revolves around how technology might lead judges or juries to misconstrue the emotions that often permeate the courtroom and upon which they rely to make their decisions. For example, juries often perceive remote participants differently than those who are physically present in the courtroom, particularly because it is difficult to assess the credibility of the former due to their demeanor and facial expression being less noticeable through a screen. Moreover, it has also been demonstrated that people who appear remotely often behave in a manner that is unfitting to courtroom environments and essentially disrespects some of its deep-rooted rituals.
Finally, the last obstacle to the wider inclusion of technology in the judicial system is based on the fact that said technologies are not always accessible to all members of society and, even when they are, individuals may not be well-versed in how to employ them. This is problematic for two reasons. First, the “complexity, cost, decentralized systems and the unavailability of paper-based alternatives can lead to differential diffusion and impacts among citizens and therefore impede realization of the justice value of equality of access.” Second, many lawyers and litigators may not be endowed with sufficient technological competence to allow them to use these tools in a manner that won’t hinder their client’s cause. This reality has led some to posit that “courtroom technology competence is properly understood as an ethical obligation for litigators and should be of concern to lawyer regulators […].”
The third chapter of our report concludes by enumerating three factors that could contribute to the better employment of technology in the judicial system. The first factor specifies user-friendly system design and engineering as a key component to the successful implementation of technology into the judiciary, as it can ensure both its effectiveness as a justice solution as well as the public’s perception towards it. The second factor specifies is the need to establish best practices, which are likely to generate trust and motivate users. Finally, as a corollary to the necessity of better design and engineering, it is crucial to involve stakeholders throughout the development and implementation of these technologies using language and procedures that speak to the diversity of their interests. With our third chapter ending on that note, our fourth and final one turns to innovating cyberjustice by harnessing the power of Artificial Intelligence, which we will elaborate upon in our next post.