March 28, 2014
Years ago, the University of St. Thomas Law School was planning to build a new law school building. One of the trustees was not a lawyer. He was a very successful businessman. He asked, “Why do you need so much space for a law library? In the future everything a lawyer will need will be on a computer.” Books are part of the heritage of lawyers and so the University of St. Thomas Law School has a magnificent law library (and plenty of books). But the question remains, what role will technology play in the future of courts?
There is a lot of anxiety about social media and courts. After being questioned by the court about his tweets in the midst of a death penalty trial, one of the jurors continued to tweet about the case and as a result the Arkansas Supreme Court rather promptly granted a new trial. Dimas-Martinez v. State, 2011 Ark. 515, 385 S.W.3d 238 (2011). In contrast, the Missouri Court of Appeals held in J.T. ex rel. Taylor v. Anbari that the trial court did not err in denying a request for a new trial even though a juror had made several posts on Facebook during the course of the trial. J.T. ex rel. Taylor v. Anbari, SD32562, 2014 WL 257273 (Mo. Ct. App. Jan. 23, 2014), reh’g and/or transfer denied (Feb. 13, 2014). The cases are hard to reconcile, but what is not hard is, more and more courts have patterned jury instructions on use of social media during trial.
Multitudes of courts are implementing e-filing, going paperless and investing in new technology to better manage the caseload. The premise is that these “investments” will save money in the long run. Armed with better data provided by new technology, courts are indeed more efficient and know more about caseloads than they did 25 years ago, but there has been little improvement in the public’s perception of the fairness and efficacy of courts.
In addition, videoconferencing has allowed for the introduction of video arraignments in many criminal courts. Transportation costs for the jailer are usually reduced. But a study on the impact of videoconferencing suggests that there may be profoundly negative consequences from video bail hearings. Diamond, S.S., L. Bowman, L., M. Wong, & M.M. Patton (2010) Efficiency and Cost: The Impact of Videoconferenced Hearings on Bail Decisions, 100 J. Crim. L. & Criminol. 869-902.
So is the solution to the dangers of misdirected technology to become a technology troglodyte? Of course not, but what is clear is that technology in courts, like so many things in life, has both pluses and minuses. Court leaders need a framework for decision making. First, technology is an aid to judgment and rarely can be a substitute for it. Second, asking the question, why are we doing this, before “investing in new technology” may save a lot more money and/or lead to better decisions. Finally, there are very “tech savvy” judges, but we remain a generation where there is a wide disparity as to how comfortable judges are with new technology.