Chasse, Ken, Technology, Evidence, and Its Procedural Rules (September 15, 2018). Available at SSRN: https://ssrn.com/abstract=3249947 or http://dx.doi.org/10.2139/ssrn.3249947
“The rules of procedure that govern proceedings concerning discovery, disclosure, and admissibility have to be flexibly applied to fit each technology that produces the evidence being dealt with because technology cannot be made to change its nature to suit rules of procedure. That is particularly important for those sources of very frequently used kinds of evidence such as, electronic records management systems (records now being the most frequently used kind of evidence), mobile phone tracking evidence, breathalyzer/intoxilyzer devices, and, TAR (technology assisted review) software programs that are used to conduct the “records review stage” of electronic discovery proceedings. Motivations to limit the time and cost of legal proceedings by limiting the issues to be decided are now outmoded because the more complex the sources of evidence become, the greater are the number and complexity of issues of law and fact that must be decided to determine the reliability of such evidence and adequacy of its production. And, the more complex a technology, the more ways it has to break down. And so, a motor vehicle has more ways, and therefore a greater probability to perform inadequately than does a bicycle. As a result, when society becomes dependent upon a more complex technology, legal proceedings must be expected to take longer and cost more. And so, mass transportation based upon motor vehicles, has imposed a vastly greater burden upon the justice system than did mass transportation based upon horses. But technology is constantly changing and so lawyers’ education has to change accordingly so that they can challenge the reliability of complex technology’s sources of evidence. Specialist legal research lawyers, able to advise all lawyers as to the nature and vulnerabilities of such technology will have to be formally recognized by law societies, and made available in law society-sponsored centralized legal research support services, operated at cost, per case so serviced. How else to provide the legal profession at large with such complex and ever-changing information with which to compose its cross-examinations and arguments adequately? That includes arguments as to why and how the rules of procedure must be flexibly applied so as to know, for example, the exact point at which the onus of proof can in fairness be transferred to the opposing party to provide “evidence to the contrary.” Given that technology is a constantly evolving, moving target, how to teach lawyers and law students about such factors as, software errors rates and architecture, the strengths and vulnerabilities of particular technologies, its national and international standards, and the requirements for its adequate manufacture, usage, and maintenance? Very little of that has an adequate legal infrastructure. Manufacturing motor vehicles allegedly does. Nevertheless, every year its manufacturers must recall millions of automobiles that they have inadequately made.
Technology that produces such evidence raises issues as to the reliability of software. The technical literature warns repeatedly, we trust software far too much. And so knowledge of technology is essential to “doing justice.” Otherwise, by default lawyers treat its sources of evidence as being infallible. It is far from that. And therefore, so are the rules of procedure that govern the use of such evidence. Blame lawyers; not judges. Judges must decide cases using only the evidence and argument provided by lawyers. Their purpose is to decide disputes; not to educate lawyers. The legal profession is just another industry that must keep up with technology in law and practice, or be bypassed by technology…”
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