Challenging Electronic Systems’ and Devices’ Ability to Produce Reliable Evidence
62 Pages Posted: 21 May 2019
Date Written: April 25, 2019
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 this article.
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 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. 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. 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; (b) protecting intellectual property; 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.
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 to impact unfairly upon the answer forced upon one of the other questions. 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.
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.
Keywords: technology, justice system, lawyers, evidence, procedural rules, software, electronic records, mobile phone tracking, courts, access to justice
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