As technology increasingly permeates society, judges are having to navigate hybrid hearings and courtroom cybersecurity, consider court cases and warrants that involve digital evidence and online interactions, and make decisions about how much to trust criminal justice algorithms as well as how to behave on social media.
Mistakes could have serious consequences for all parties involved, such as the potential misinterpretation of evidence and judge disqualification due to social media activity that appears to undermine their impartiality.
Courts have faced their share of ransomware, too, and the attack surface is growing with digital case management systems and audiovisual tools increasingly a part of daily court activities.
Technology changes rapidly, and, in some states, judges may be working in a landscape that's very different from the one in which they assumed office. Judges in Massachusetts and New Hampshire can remain in office until age 70 once appointed, and judges in Rhode Island stay on for life, per the Brennan Center for Justice.
So how do judges keep familiar as technology quickly evolves?
Many US states’ judicial education authorities hold mandatory annual conferences that frequently address technology topics. They also often include technology subjects among the trainings that judges in jurisdictions with continuing education requirements can select to fulfill those obligations.
But approaches and policies vary; at least one state requires judges to take an annual training about computer security, while several others impose no continuing education requirements at all.
Not everyone agrees that this is good enough. One of them is John Browning, a jurist in residence at Faulkner University's Thomas Goode Jones School of Law and chair of the Institute for Law and Technology at the Center for American and International Law.
“We see certain states and their judicial education conferences making technology a regular part of the curriculum, but there's still nothing uniform across the country,” Browning said.
Browning told Government Technology that judges in all states should have a “mandatory duty of tech competence”, obligating them to be “conversant” on technology topics. Such a measure would be similar to the obligations many states put on lawyers, he said.
As of 2020, 38 states had specified – typically as part of their rules of professional conduct – that lawyers needed to have a level of competence with technology, according to legal blog LawSites. Florida, North Carolina and New York have specific hour-based requirements.
Extending such an obligation to judges would also align the US with Canada, which in 2021 updated its ethical guidebook to advise judges to stay informed about relevant technologies and use caution on social media, Browning said.
How are judges learning tech?
Thus far, states appear to largely avoid giving judges tight technology training obligations.
“I’m not aware of any states that have a specific requirement for (judges to take) X number of hours of technology training like they would for, say, ethics or maybe domestic violence or other things,” said David Slayton, vice president of US Court Consulting Services for the National Center for State Courts (NCSC). “It’s just more of a content selection that's made as part of the remaining (continuing education) hours that are required.”
Currently, US states present very different pictures.
Five states require no continuing education from their judges – technology-related or otherwise; these are Connecticut, Massachusetts, Maine, South Dakota and Vermont, according to a 2021 article from the University of Nevada, Reno and the National Judicial College.
Arizona, in contrast, stands out for a stronger tech approach: Since 2015, it’s required judges to spend some of their 16 continuing education hours on “computer security/network security training”. The measure is intended to keep judges and judicial employees alert to social engineering tactics used by cyberattackers, said Jeff Schrade, director of the Education Services Division of the Arizona Supreme Court Administrative Office of the Courts, in an email to Government Technology.
Additionally, Arizona’s Code of Judicial Administration stipulates that judicial continuing education programs should “emphasis(e)” topics such as “procedural and technological developments in the judicial system”. The code does not specify a minimum number of credit hours for this or for the security training.
Other states are somewhere in the middle. Nevada judges must take 13 hours of continuing education annually; each judge can choose the relevant subject for 10 of those hours, explained Nevada Supreme Court Manager of Judicial Education David Gordon.
“After a judge takes the bench in Nevada and fulfills the new judge education requirements – which vary depending on their jurisdiction, but really are only a couple of classes that are mandated by statute or by court order – then they really are selecting their education, as long as they stay within the guidelines of the 13 credits per year and the breakdown in there,” Gordon said.
Many judges are exposed to technology topics during annual conferences as well, with outside experts addressing tech topics such as courtroom technologies and cybersecurity, said NCSC’s Slayton.
Alaska, for example, has mandatory annual conferences and trainings that have for at least the past seven years included “topics such as the introduction of new internal case processing/case management/recording technologies, cybersecurity, Zoom (during the pandemic and beyond), and even social media”, according to Alaska Court System Judicial Education Manager Aesha Pallesen.
Many states also provide optional resources, such as explainer videos detailing how to take hearings remote during the pandemic. Schrade also pointed to an Arizona government unit responsible for offering training on a court case management system.
A smaller slice of US judges might also attend trainings at organisations like the National Judicial College or the National Computer Forensics Institute (NCFI).
The NCFI offers state, local, tribal and territorial full-time judges a free five-day course on digital evidence. It's intended to help judges facing warrant requests or court hearings understand the technology terms and relevant case law.
“We start with the basics: What is a computer? What is a cellphone? How does it work? What is Internet? The cloud isn’t really a cloud,” explained NCFI Deputy Director Beau Brown. “Then we move into the forensic process. We talk about networks. We talk about social media. And then we get into the underlying law of the Fourth Amendment, Fifth Amendment, evidence issues, that sort of thing.”
To ensure judges feel comfortable talking freely in class, and to avoid potential conflicts of interest down the line, NCFI is careful about instructor selection. Classes are taught by third-party instructors or current judges and are proctored by Secret Service agents from states not represented among the judicial attendees.
Students range from judges who’ve been on the bench for four weeks to those who’ve been on for decades and can range widely in their familiarity with technology, Brown said.
Students typically only take the course once in their careers, and not every applicant gets in. NCFI takes in 24 judges per class, with five classes scheduled this year.
NCFI has six classrooms and one more in the works, which would expand enrollment, and the institute also offers virtual updates with no attendance limitations.
When a judge is hearing a court case, the parties involved may bring in subject matter experts to clarify the technology considerations, NCSC’s Slayton said.
Still, this consulting only goes so far.
“There’ve been situations in the past where judges have been criticised for issuing opinions which clearly show a lack of understanding of how the technology works,” Slayton said. “It becomes really difficult: Even if you have an expert who can do it, the expert is obviously not going to write the opinion or issue the ruling in the case, it’s going to be the judge.”
Is more needed?
Browning – who has presented at judicial education conferences – said the current system isn't enough to guarantee judges stay informed.
“A judicial conference for a given state might cover this sort of issue at one annual conference but then decide to look at a different issue the next year – whereas this is really a recurring sort of thing that we need judges to stay on top of,” Browning said.
Judges don’t have to become experts, but they should become “conversant”, Browning said.
He argues for making technology familiarity a formal requirement. That might be achieved by interpreting judges’ ethical obligations as requiring them to stay familiar with current technology. Or states could obligate judges to dedicate a certain number of continuing education hours to the subject, akin to how some already require hours to be spent learning about areas like domestic violence and human trafficking.
Arizona’s Schrade made a case for taking a light-touch approach to continuing education rules. Short-term trainings about new technology rollouts can be helpful, but the state avoids mandating ongoing education about specific tools, he said. This is intended to let judges select what they need to know, without binding them to studying offerings that may become outdated.
“While a broad and flexible requirement for continuing training and education can encourage a culture of learning among professional judges, prescriptive requirements often risk becoming ineffective or counterproductive over longer time periods,” Schrade said. “Judges often know best about the specific training and information they need for the case types and tools used in their courtrooms.”
On a practical level, Schrade said that the administrative work required to track and enforce such requirements can become “prohibitive(ly)” costly.
The risks of digital missteps:
Defendants may be jailed unnecessarily if judges misunderstand the accuracy limits of pretrial risk assessment algorithms, and significant evidence may come from digital sources. The recent defamation case against Infowars’ Alex Jones, for example, saw plaintiffs’ lawyers use Jones’ text messages to contradict his testimony.
“An Emoji in an email or text may be subject to different interpretations with varying legal significance,” Browning wrote in a 2020 article.
Nevada's Gordon also said it's important for judges to understand details about digital evidence, such as how metadata can indicate signs of manipulation or fakes.
Judges who understand the technologies at play are better prepared to interpret how existing law applies. For example, recent cases are forcing judges to determine whether witnesses seeking damages for emotional distress after seeing a traumatizing incident should be treated the same regardless of if they saw the event in person or through livestream, Browning said.
Emerging tech, emerging questions
Emerging technologies are also becoming increasingly relevant. Training on self-driving cars is in high demand among judges from lower courts, who need to consider the impact on traffic violation citations, Gordon said.
And judges can struggle with highly technical topics, especially if they have a limited background or limited personal interest in technology, explained NCSC's Slayton.
"If you went up to a judge and said, ‘We’ve got a case about machine learning’, a lot of judges would say, ‘I have no idea what you’re talking about’,” Slayton said.
NCSC is trying to help judges become familiar enough that they know “the right questions to ask”, he said. The organisation offers courses, webinars and other resources.
Social media and ethics
Judges also have become disqualified from cases based on even minor-seeming social media ethical missteps such as liking a litigant’s Instagram post, Browning said.
While some judges may try to avoid social media entirely to avoid inadvertently breaching ethical standards and codes of conduct, this isn't always practical. Nevada judges are typically elected, and Gordon said there's a growing realisation that they need to access social media for their campaigns.
Digital courts and cybersecurity
The pandemic sent many hearings hybrid, and this trend is unlikely to reverse, Slayton said. Tech also continues to impact everything from body camera footage to administrative tools.
“These days, technology encompasses everything everyone does, and judges as well, (including) how to use the actual tools that are given to them – a case management system or a judicial tool like a viewer, or the electronic filing system, or how to electronically sign orders and those types of things,” Slayton said.
Judges need to know how to use such offerings well and understand best practices to keep the system secure from cyber attacks, he said.
Schrade said Arizona judges have become comfortable using videoconferencing tools for remote hearings but are interested in learning more about how to ensure "procedural fairness" when doing so – in part by studying recordings of other remote hearings to learn techniques. The state is also focusing on preparing judges to switch back to manual methods should natural disaster or a cyber attack disrupt access to digital supports. – Government Technology/Tribune News Service