Accurate, Focused Research on Law, Technology and Knowledge Discovery Since 2002

Daily Archives: October 25, 2018

Making Sufficient Knowledge of Technology Available to Counsel

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

(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;”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…”

In Groundbreaking Decision, Feds Say Hacking DRM to Fix Your Electronics Is Legal

Motherboard: “The new exemptions are a major win for the right to repair movement and give consumers wide latitude to legally repair the devices they own. The Librarian of Congress and US Copyright Office just proposed new rules that will give consumers and independent repair experts wide latitude to legally hack embedded software on their… Continue Reading

190 universities just launched 600 free online courses. Here’s the full list.

Quartz – “If you haven’t heard, universities around the world are offering their courses online for free (or at least partially free). These courses are collectively called MOOCs or Massive Open Online Courses. In the past six years or so, over 800 universities have created more than 10,000 of these MOOCs. And I’ve been keeping… Continue Reading

Federal Prosecution of Environmental Crimes Continues to Drop

“The latest available data from the Justice Department shows that during the 12 months of fiscal year 2018, ending in September, the government reported prosecuting 109 new environmental crimes. Of these 29 defendants were businesses. The rest were individuals. According to the case-by-case information analyzed by the Transactional Records Access Clearinghouse (TRAC) at Syracuse University,… Continue Reading

Single-use plastics ban approved by European Parliament

Plastic Oceans: MEPs back EU ban on throwaway plastics by 2021 single-use cutlery, cotton buds, straws and stirrers to be banned from 2021  MEPs added oxo-plastics and certain polystyrenes  plastics where no alternatives available to be reduced by at least 25% by 2025  measures against cigarette filters and lost fishing gear     National reduction targets for… Continue Reading

Consumer Checkbook – Pet Insurance Review

Pet Insurance  Overview Articles & Advice “To assess the true value of pet insurance, we gathered premium quotes from nine plans, obtained price data showing what veterinarians actually charge for hundreds of services, and interviewed executives from nine leading insurers. We worked with the Purdue University College of Veterinary Medicine to develop a reasonable basket… Continue Reading