Making Sufficient Knowledge of Technology Available to Counsel

69 Pages Posted: 1 Oct 2018

Date Written: September 14, 2018

Abstract

Lawyers’ knowledge of technology — how to provide counsel with sufficient knowledge to be able to effectively challenge the reliability of those technologies (electronic systems and devices) that produce the most frequently used kinds of evidence, e.g.: electronically produced records; mobile phone tracking evidence; breathalyzer/intoxilyzer devices; and, software programs for discovery’s “technology assisted review” stage. More specifically the problem is collectively made up of these individual 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 Legal Aid will pay for them).

(2) law schools don’t teach courses on the necessary interaction 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. See e.g., R. v. Oland 2015 NBQB 245, and, R. v. Oland 2015 NBQB 244, being two pre-trial voir dires on the admissibility of mobile phone tracking evidence for a 2nd degree murder trial.

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

(4) the problem is a moving target, i.e., technology is constantly changing and therefore so will the types of technology that produce the most frequently used kinds of evidence;

(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; (6) Prosecutors don’t know such technology either, and therefore can’t inform investigating officers what to watch out for and obtain;

(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, Nov. 7, 1991), requires be disclosed to defence counsel, may be very inadequate, but defence and prosecuting counsel, and their law school professors don’t know what they don't know as to technology; (8) because most of the evidence used in both criminal and civil proceedings now comes from the same sources, most of the great complexity of 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 Standards of Canada (or the comparable, U.S., DoD’s 5015.2 standard for records management) that establish the required practices and procedures for the proper operation of such technology, such as electronic records managements systems' technology;

(10) at a preliminary inquiry, counsel cannot specify whether “committal for trial is in issue,” if the quality of the, manufacturing, use, and maintenance of the technology that produces the prosecution’s evidence is not known;

(11) defense counsel needs a constitutional right to a traditional full preliminary inquiry 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;

But instead, Bill C-75, Second Reading, June 11, 2018 (in the Canadian Parliament), 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, i.e., the proposed amendments would abolish the preliminary inquiry for all but those offences involving a maximum punishment of life imprisonment, which offences range from murder to criminal negligence causing death.

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. Such innovation is now necessary 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 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 defense. But, because few law firms would have sufficient volume of production to be able to employ such highly specialized lawyers, they would have to be made available to other lawyers in support services operating at cost. However, law societies have no history of doing either creating specialist legal research lawyers, or support services.

Keywords: Lawyers’ Knowledge, Technology, Counsel Challenge the Reliability of Those Technologies, Electronic Systems, Devices, Electronically Produced Records, Mobile Phone

Suggested Citation

Chasse, Ken, Making Sufficient Knowledge of Technology Available to Counsel (September 14, 2018). Available at SSRN: https://ssrn.com/abstract=3249523 or http://dx.doi.org/10.2139/ssrn.3249523

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