Technology & the Judicial System
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.
Keywords Assistive Technology; Cell Phone Records; Criminology; DNA Testing; Forensics; GPS Tracking; Judicial Management; Semantic Web; Telejustice; Videoconferencing
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).
In recent decades, 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 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). 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). A more recent 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 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, more recently, 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:
- Recording device was capable
- Operator was competent to operate the device
- The recording is authentic and correct
- Changes, additions or deletions have not been made in the recording
- The recording has been preserved in a manner shown to the court
- The speakers are identified
- 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).
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