New Recommendations for Enhancing Criminal Justice System's Fairness and Efficiency Through Technology

     Computers being so commonplace today, many legal cases now involve discovery of some computer-stored information. In a growing number of cases, relevant data exists only in electronic form.

     A unique working group comprised of representatives from the Administrative Office of the United States Courts, the Department of Justice, and both the public and private criminal defense bar, explored ways in which prosecutors and defense attorneys could cooperate and coordinate the handling of electronic data.

     The group’s report states that such cooperation can enhance the fairness of the criminal justice system, while controlling costs and increasing efficiency.

     Formed in 1999, the group sought input, through interviews and questionnaires, from federal judges, criminal chiefs of U.S. attorney’s offices, federal defenders, and Criminal Justice Act lawyers.

     The group’s report includes a number of specific recommendations applying to discovery, pretrial, and trial phases of criminal litigation. It also includes these general recommendations:

– The Administrative Office, Department of Justice, and Federal Defenders should promote awareness of new technology capabilities and the issues they generate. That will help criminal justice participants make more effective and efficient use of these tools.

– Investigative agencies must be brought into the planning process, since their efforts often drive the acquisition and use of electronic information.

– The judiciary should urge formation of local working groups in federal judicial districts. Those groups should include federal prosecutors, defense lawyers, and judges to consider how to best address emerging uses of electronic data.

– The impact on juries of electronic technology, including how electronic information can best be provided to jurors during deliberations, should be studied.

– The need, feasibility, and usefulness of trial-specific document repositories on secure web sites to facilitate digital discovery should be examined.

– The National Institute of Trial Advocacy should be asked to assist the bench and bar with training by providing curricula for CLE training on electronic technology in criminal litigation.

– Entities responsible for providing training and support services to private “panel” attorneys providing Criminal Justice Act representation should address the lack of automation, litigation support resources, or training available to them.

– Each district court should consider promoting and providing training on trial-presentation equipment and methods – not only to court staff but also to attorneys in the criminal justice system.

– The national policy makers from each of the constituent groups should investigate and promote methods for providing training in electronic technology to users for all stages of the criminal justice process.

– Consideration should be given to providing joint training for prosecutors and defense counsel at a local or regional level. Such training could address local issues, procedures and practices governing the exchange, use, and presentation of electronic data.

– Blanket rules that require digitization or electronic presentation in all cases should be avoided.

– Efforts should focus upon identifying required software and hardware capabilities rather than specifying use of particular products. Although standardization would blunt innovation and creativity, the working group strongly believes that digitizing information in a format readable by all parties, and with commercial, non-proprietary software, is preferred for ease of discovery and use at trial.