Technology and the Judicial System

Abstract

While technology has long been used to uncover evidence germane to the commission of crimes and the adjudication of the accused at trial, the past several decades have resulted in an exponential increase in the technical sophistication of exploratory and explanatory methods in criminology and their use in the American judicial system. These methods include DNA testing and forensics in general, as well as the use of cell phone records and GPS tracking. As for judicial management, assistive technologies and telejustice have brought a new level of accessibility to, and participation in, the US judicial system. Finally, from a strategic perspective, computer information systems and the Semantic Web hold the potential to provide richer data sets about those accused of crimes.

Overview

Like most other aspects of modern life, the American judicial system has been touched by technology. Indeed, the field of criminology in general has benefited from the rapid pace of technological advances made since the twentieth century.

Technology has been broadly used to provide legal evidence for centuries, and not only in the West. For example, it has been known for centuries that fingerprints are unique identifiers. Since at least the 7th century in China (Laufer, 2000), fingerprints were placed on credit slips by debtors so the latter could not evade repayment. In 13th- and 14th-century Persia, it was customary to put fingerprints on all legal contracts ("Laying on of hands," 1919). Forensic science in general dates back at least to the time of Archimedes (c. 287 BCE–212 BCE), at least in a crude form, when the great philosopher proved a king's crown was not made entirely of gold by measuring the amount of water it displaced (Vitruvius).

The same technology that has benefited countless people both at home and at work has been employed by law enforcement and the judicial system in the investigation and prosecution of crimes in the United States. This technical evidence includes well-known examples such as DNA testing, video and audio recordings, cell phone records, and GPS tracking, but there are also other, perhaps less glamorous, uses of technology in the judicial system. These include centralized record-keeping systems for courts, improved access to the legal system for those with disabilities, and the use of videoconferencing systems.

DNA Testing. DNA testing is perhaps the most well-known use of technology in the judicial system. It relies on the fact that while most of the base pairs of DNA shared by humans are identical, there are segments of DNA in humans that are quite variable. These segments, known as variable number tandem repeats (VNTR), are unlikely to be the same in any two individuals, and thus they have become highly reliable evidence in criminal proceedings. Working from a sample of material such as skin, blood, or semen, forensic scientists are able to determine with a high degree of confidence whether or not the sample came from a particular individual.

DNA testing was invented by Dr. Alec Jeffreys at the University of Leicester in 1984 and was introduced into criminal proceedings later that decade. Between 1989 and 2013, it was used to overturn 311 wrongful convictions in the United States, 244 of them in 2000 or later. Furthermore, in nearly half of those cases, the same process that acquitted the wrongly accused led law enforcement to identify the truly guilty ("DNA exonerations nationwide," 2013). According to the Innocence Project, there have been tens of thousands of other cases in which the cloud of suspicion was lifted from a prime suspect through DNA testing ("DNA exonerations nationwide," 2013). As of 2017, the Innocence Project reported that 354 people had been exonerated through DNA testing ("DNA exonerations in the United States," 2017). It is still important to note, however, that more often than not, DNA testing actually confirms the guilt of those who have been suspected or convicted of a crime (Jacobi & Carroll, 2007, p. 2).

DNA analysis has come to be widely regarded as the most trustworthy type of evidence, indeed much superior to eyewitness testimony. Nearly 80 percent of the persons vindicated by DNA evidence in the United States prior to 2008 were put in prison due to faulty eyewitness testimony (Pribek, 2008). No one is certain of the total number of wrongful convictions due to faulty eyewitness testimony, but the percentage may be as high a 6 percent (Pribek, 2008).

Traditionally there have been two main types of DNA testing: restriction fragment length polymorphism (RFLP) analysis and polymerase chain reaction (PCR) analysis. "PCR is less direct and somewhat more prone to error than RFLP. However, PCR has tended to replace RFLP in forensic testing primarily because PCR based tests are faster and more sensitive" (Riley, 2005). Another method is short tandem repeat (STR) analysis, which compares DNA sequences called microsatellites. DNA testing is especially useful when there are no other types of forensic evidence available, such as fingerprints, which are also unique to individuals and have been used to secure convictions of the guilty and exonerate the innocent in the United States since 1911 ("Laying on of hands," 1919).

Audio & Video Evidence. Audio and video evidence has become another tool frequently used in court. Prosecutors use it to place the accused at the scene of a crime, while defense attorneys may use it to cast doubt on the prosecution's reconstruction of events. Audio evidence can be obtained from any number of devices, such as nearby microphones, digital or cassette recorders, or even the audio from a digital camera. Video evidence typically comes from video cameras, closed-circuit television cameras, and mobile phone cameras.

Video evidence, while compelling, suffers from two potential drawbacks: quality and integrity. First, depending on the environmental conditions, such as the level of light or the quality of the camera, video evidence can be grainy, blurry, or otherwise unclear, making the identification of individuals and activities on the video difficult or even impossible. Second, modern video-editing technology makes it easier than ever to doctor video evidence. For video evidence to be legally admissible in the United States, it must be clear and compelling and retain its original integrity.

The quality of video evidence can be improved to some extent using computer software. One popular way to demonstrate the integrity of video is the use of digital signatures, wherein the video is electronically marked while being recorded in such a way that evidence of tampering becomes readily apparent (Beser, Duerr, & Staisiunas, 2003).

Regarding audio evidence, some of the same rules apply: Was the tape altered? Is it possible to identify those speaking on the tape? Does the recorded conversation implicate the defendant or defendants in any criminal activity? Since the 1958 Supreme Court ruling in United States v. McKeever, US courts have applied the following seven-pronged standard to ensure that an audio tape is authentic:

1. Recording device was capable
2. Operator was competent to operate the device
3. The recording is authentic and correct
4. Changes, additions or deletions have not been made in the recording
5. The recording has been preserved in a manner shown to the court
6. The speakers are identified
7. The conversation elicited was made voluntarily and in good faith without any kind of inducement (Owen et al., 2005, p. 4)

Of course it is not always an easy task to answer such questions of audio and video authenticity. In this case, as in other instances where technology plays a role in jurisprudence, the role of the expert witness has become vital. Owen et al. explain:

Usually a prosecutor or a defense lawyer will contact an expert and ask for assistance in determining whether an audio or video recording has been edited, whether the voice on the tape is that of his/her client, or whether it is possible to tell if that is really the defense attorney's client in the video robbing the 7-11 store. He or she will send a tape that has been provided by the government, or by the opposing attorney or agency. The attorney will expect the expert to conduct an examination and present conclusions and opinions. (Owen et al., 2005, p. 1)

The US Supreme Court has ruled that trial judges are the gatekeepers, or arbiters, of the scientific soundness of expert witnesses. As such, judges can either allow or disallow expert witnesses from appearing and testifying at trial. As Owen et al. point out, "most judges rely on the expert to provide the information they need to assess the science and technology" (2005, p. 4).

Cell Phone Records. The use of cell phone records has become another important tool in judicial proceedings. In the United States, each cell phone is connected to the carrier's system through cell phone towers located throughout the country. Because each cell phone signal is sent from the closest available cell tower when a call is made, law enforcement can identify the general area the caller was in at the time of the call. According to Tisch (2005), "In urban areas crowded with cell towers, the records can pinpoint someone's location within a few blocks" (par. 3).

Cell phone records, in conjunction with DNA and eyewitness testimony, have been used successfully to acquit individuals of criminal activity in US courts (Brick, 2007). They have also been used to establish that the accused was in fact in the area when the crime was committed (Tisch, 2005), though other types of evidence were required to prove that this was more than merely coincidental. A subpoena is required to compel cell phone carriers to release an individual subscriber's cell phone records, though this process can be circumvented in kidnappings and other extreme cases where time is of the essence.

Beyond cell phone towers, the Global Positioning Satellite (GPS) systems that are built into many cell phones allow cell phone carriers and law enforcement to pinpoint the exact location of a cell phone on a grid. Cell phones such as these use the same satellite-powered GPS technology used by mapping services. In addition, starting in September 2012, US cell phone carriers were required to be able to provide a specific caller's latitude and longitude within three hundred meters upon request, which raised the issue of potential invasion of privacy:

The FCC's Wireless 911 rules require that all US cell phones be equipped with a global positioning system (GPS) or other technology so that emergency personnel can locate people who call 911 from their mobile phone. When the system is fully implemented, 911 operators will know your longitude and latitude, which is a good thing if one needs help and cannot report an exact location. But there's nothing in the rules that say that the technology can only be used for emergency services. In fact, there are numerous commercial services that are already piggybacking on this E911 location technology. And it is not just cell phones that can track one's location. Laptop PCs, PDAs, Internet phones and other WiFi (wireless networking)-enabled devices can also be used to locate someone, thanks to a company that has mapped out the location of millions of wireless Internet adapters around the US. (Magid, 2007, par. 3–4)

Civil libertarians have noted that such methods contain within them the potential for abuse, although law enforcement officials and politicians maintain that the benefits of geotracking for consumers outweigh any potential dangers from unjust violations of privacy.

Assistive Technology. Attempts are underway to make the US judicial system more accessible to the country's aging population, as well as to Americans with disabilities. In 2007, the Center for Legal and Court Technology (CLCT) and the American Foundation for the Blind (AFB) Consulting Group partnered together to launch the Accessible Courts Initiative, which was

… a partnership aimed at getting government agencies, law firms, law schools, judges, lawyers, and other members of the legal professions to make use of appropriate access technology in the courts in addition to making their web sites and other services accessible to people with disabilities. ("New program," 2007, par. 2)

Their aim was to take the spirit of the federal Americans with Disabilities Act (ADA), which requires physical access to courts for all, and extend it to the realm of technology. Under the Accessible Courts Initiative, the CLCT and AFB Consulting Group provided consultation, training, and support services to courts, law firms, and others to ensure compliance with the legal requirements of the ADA and other mandates.

Further Insights

Gathering Data on the Accused: Integrated Data. Technology is an essential part of judicial management. One of the most important, albeit less recognized, uses of technology in the judicial system is the use of integrated electronic data sets related to the accused. This technology has the potential to make all the computerized records relevant to the accused—child-support data, arrests in other states, drunk-driving records, and so on—available when his or her case is tried.

As of the early twenty-first century, such a goal remained more a dream than a reality, though stated support for it remained strong. Historically, the various parts of the criminal justice system have purchased and deployed computerized systems that were unable to communicate with other systems in other jurisdictions or departments. Since then, many of these computerized systems have become antiquated and inefficient, with no upgrades or replacements planned because of political, budgetary, or other concerns.

Computerized records did not replace paper records in a seamless manner. Some areas continue to retain both paper and electronic records, with perhaps predictable results. In Maryland, as of July 2008, it remained the case that "prisoner-release and detention instructions [were]… managed with handwritten notes," a method that has resulted in several convicted criminals being improperly released due to paperwork errors (Harris, 2008, par. 1).

Lack of Coordinated Data. Due to these various technological, economic, and political realities, it has been commonplace for some or all of the data relevant to a defendant's trial to be unavailable due to the presence of data silos. While the exact number is impossible to calculate, there is little doubt that a lack of integrated data on the accused has led to justice not being served in more than a few cases.

In an attempt to address the problem of siloed data, some states have adopted measures to centralize their records. Several federal government departments have pursued such measures as well, especially in the wake of the September 11, 2001, terrorist attacks, when the lack of coordination between various federal agencies became apparent. These efforts have met with varying degrees of success.

The Semantic Web. A newer frontier in data collection involves the concept of the Semantic Web, which Tim Berners-Lee, the inventor of the World Wide Web, first described in 1999 (Berners-Lee & Fishetti, 1999) and has more recently restated:

The Semantic Web looks at integrating data across the Web… The Web can reach its full potential only if it becomes a place where data can be shared and processed by automated tools as well as by people. For the Web to scale, tomorrow's programs must be able to share and process data even when these programs have been designed totally independently. The Semantic Web is a vision: the idea of having data on the web defined and linked in a way that it can be used by machines not just for display purposes, but for automation, integration and reuse of data across various applications. (Berners-Lee, as cited in Carvin, 2005, par. 6)

That is, machines will help share the burden of collecting, integrating, and contextualizing information relevant to the judicial system. If history is any indication, the private sector will continue to do the pioneering work on the Semantic Web, with the public sector following suit some time later.

Telejustice. A related and emerging field of technology as applied to the judicial system is what some have called telejustice (Tinnin, 2005). Telejustice takes advantage of modern, Web-based videoconferencing technologies to allow attorneys to perform such tasks as taking depositions over the Internet. This method reduces travel costs and decreases the time it takes to get depositions from key individuals in a case. It also allows defendants to enter a plea from a secure location, while perhaps also making it less dangerous for witnesses to testify and be cross-examined.

Mathias and Twedt (1997) provide a helpful list of other uses of telejustice:

• Probable cause/bond hearings/appointment of indigent counsel/setting of arraignment date (misdemeanors and felonies)
• Misdemeanor arraignments/guilty pleas/sentencing
• Felony arraignments
• Parole interviews, parole revocation, victim input, and other post-conviction hearings
• Juvenile detention hearings (delinquent, child in need of assistance)
• Mental health hearings (emergency detention, review)
• Pretrial conferences and motion hearings with out-of-town attorney(s)
• Taking trial testimony of witnesses at other locations
• Depositions of out-of-town witnesses
• Law enforcement officer swearing under oath to facts alleged in affidavit or complaint
• Law enforcement officer testimony before grand jury
• Prosecutor interview of law enforcement officer regarding facts in police report
• Federal social security disability hearings
• Federal veterans benefits hearings
• Signing or language interpretation
• Training of detained juveniles, court staff, law enforcement officers & staff, or other staff (Mathias & Twedt, 1997, Table 1)

No advocate of telejustice sees it as a complete replacement for in-person judicial proceedings. Regarding its use in depositions, one attorney noted that the technology can be useful in certain situations where depositions need to be monitored. However, it was felt that there is still no real substitute for the physical presence of the attorney. The technology can then be applied so that others can view it, thus simplifying the scheduling and logistics and saving on travel expenses (Tinnen, 2005).

Terms & Concepts

Assistive Technology: An umbrella term used to describe technology and other measures that make institutions of society more accessible to the elderly and people with disabilities.

Cell Phone Records: Records of the times, dates, recipients, and general locations of calls made on a cellular phone. Such records are often used in court to establish the general whereabouts of a suspect at the time a crime was allegedly committed.

Criminology: The science of criminal investigation, encompassing the crime itself as well as the social causes and ramifications of the crime.

DNA Testing: A scientific method that can be used to try to match DNA material from a crime scene to one or more individuals accused of a crime.

Forensics: A shorthand way of referring to forensic science, a collection of scientific methods used to investigate questions relevant to the judicial system. One such method is DNA testing.

GPS Tracking: A feature of some cell phones, in-car navigational systems, and other high-tech devices in which an individual's location is mapped and tracked by satellite. GPS tracking is more accurate than cell phone records for establishing a geographical location, though both methods have their place.

Judicial Management: A term used to describe the practice of maintaining a well-run judicial system. Many of these practices involve the use of computers and other high-tech devices to streamline the administration of justice.

Semantic Web: A term used to describe the extension of the World Wide Web in which machines would reach across the Internet to gather data related to a particular need or question.

Telejustice: The use of videoconferencing in court proceedings. Some uses of telejustice include felony arraignments, parole interviews, and depositions.

Videoconferencing: A technique by which two or more individuals in different physical locations can communicate, through audio and video, with one another.

Bibliography

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Brick, M. (2007, August 24). Cellphone records help to clear a murder suspect. New York Times. Retrieved July 23, 2008, from http://www.nytimes.com/2007/08/24/nyregion/24phone.html

Carvin, A. (2005, February 1). Tim Berners-Lee: Weaving a Semantic Web. Retrieved July 23, 2008, from the Digital Divide Network. http://www.digitaldivide.net/articles/view.php?ArticleID=20.

DNA exonerations nationwide. (2013). Retrieved November 13, 2013, from the Innocence Project. http://www.innocenceproject.org/Content/DNA%5FExonerations%5FNationwide.php

DNA exonerations in the United States. (2017). Innocence Project. Retrieved from https://www.innocenceproject.org/dna-exonerations-in-the-united-states/

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The laying on of hands for fingerprints; woman expert thinks system will not be confined to criminals, but will become universal—Chinese used it for identification sixteen centuries ago. (1919, June 29). New York Times Magazine, p. 80. Retrieved July 22, 2008, from http://query.nytimes.com/gst/abstract.html?res=980CE5D81E3BEE3ABC4151DFB0668382609EDE

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Suggested Reading

Cohn, M., & Dow, D. (1998). Cameras in the courtroom: Television and the pursuit of justice. Jefferson, N.C.: McFarland & Company.

Mohr, R., & Contini, F. (2011). Reassembling the legal: "The wonders of modern science" in court-related proceedings. Griffith Law Review, 20, 994–1019. Retrieved November 18, 2013, from EBSCO Online Database Academic Search Complete. http://search.ebscohost.com/login.aspx?direct=true&db=a9h&AN=70871306&site=ehost-live

Ressl-Moyer, T. (2016). The intersection of forensic science and technology with criminal justice in Massachusetts: Interview with David Siegel. New England Journal on Criminal & Civil Confinement, 42(1), 51–64. Retrieved March 5, 2018 from EBSCO Online Database Sociology Source Ultimate. http://search.ebscohost.com/login.aspx?direct=true&db=sxi&AN=114708475&site=ehost-live&scope=site

Sammons, J. (2012). The basics of digital forensics: The primer for getting started in digital forensics. Waltham, MA: Syngress. Retrieved November 18, 2013, from EBSCO Online Database eBook Collection. http://search.ebscohost.com/login.aspx?direct=true&db=nlebk&AN=454069&site=ehost-live

Smith, F. C., & Bace, R. G. (2002). A guide to forensic testimony: The art and practice of presenting testimony as an expert technical witness. Boston: Addison Wesley Professional.

Stepniak, D. (2008). Audio-visual coverage of courts: A comparative analysis. Cambridge: Cambridge University Press.

Websites. The Innocence Project. http://www.innocenceproject.org/