In March 2021, I spoke at a virtual ABA Judicial Division webinar addressing digital evidence management in the courts. I learned a great deal from experts in the United States and the United Kingdom, and the program is available as a webinar on demand.1 Karl Heckart, Arizona Supreme Court chief information officer (CIO), and I shared some history of Arizona’s 25-year digital evidence journey, including an ongoing effort to bring a digital evidence portal concept to Arizona’s trial courts. This article highlights that discussion and those efforts in Arizona.
Papyrus to Petabytes
When I graduated from law school in 1988, paper was the norm for the three main components of the court record: filings, transcripts, and exhibits. Filings and transcripts are now accepted digitally in many courts, and have been for some time, but exhibits are not. For example, in a contract dispute, a copy of the contract can be filed with the court electronically as an attachment to the complaint. And a deposition transcript can be lodged as an electronic file as well. But any use of that contract at trial or an evidentiary hearing typically requires the electronic file to be printed out and used in paper form. So, the technological advances in the past decades for filings and transcripts have not been applied to how courts receive and handle exhibits.
Despite this limitation, the volume of digital evidence has skyrocketed with the proliferation of technology, including cellphones and particularly body-worn cameras used by law enforcement officers. Other types of digital evidence abound: images, audio recordings, text messages, and documents that may otherwise never be printed. The challenge for courts is how to allow such electronic files to be received in evidence in digital form. This challenge is complicated by many variables, including formatting, proprietary systems, and differences in (and different levels of) technology by all involved. Courts have struggled to provide litigants or parties that wish to submit or share digital evidence with a consistent and easy experience.
It was an issue Arizona recognized, and we weren’t the only ones. The Joint Technology Committee (JTC), established by the Conference of State Court Administrators, the National Association for Court Management, and the National Center for State Courts, published a call to action—Managing Digital Evidence in Courts2—in early 2016. The JTC report noted that courts are not designed to manage large quantities of digital evidence and needed to “find creative ways to deal immediately with the dramatically increasing volume of digital evidence, while planning for and developing new technologies.” The JTC highlighted many of the same challenges we saw and thoughtfully identified issues to address when considering changes and solutions.
The JTC report led to the creation of Arizona’s Task Force on Court Management of Digital Evidence in 2017, an effort I chaired. But Arizona’s Digital Evidence Task Force (DETF) was just the most recent step in a journey that Arizona had started long ago.
A Long and Winding Road
Although digital transformation is a buzzword used in many areas of public life today, digitization in one form or another has been a focus of the Arizona courts for decades. Current efforts trace their roots back to at least the early 1990s, when the court published its 10-year vision in a 1993 strategic document. The goal was to improve access to justice as well as increase the efficiency of court processes to make best use of public funds.
One key element was the replacement of paper-based filing systems. If a court user wanted to find a document archived in the paper world, they had to rely on their own instincts and the knowledge and experience of a court clerk. In a digital world, at least in theory, all archives could be easily searchable, and anyone could look for and retrieve the information they wanted.
This change required significant investment in new technology and careful consideration of how to manage change from an organizational standpoint. It represented a new process for thousands of court users who, at that time, were not used to using computers.
Then came Arizona’s case management systems. That arrival required coding key information digitally rather than accepting and filing paper. Designed to improve efficiency, it also mandated new and different undertakings. The next logical step was a document management system. But back in the day of paper, filings were received in physical form and then had to have the staples removed, be scanned, and finally be quality checked.
With each phase of digitization, Arizona automated parts of the system while creating new or more work in others. E-filing allowed the court to receive information electronically and move that quickly around the system. To give judges additional tools, Arizona built an e-bench system. A byproduct of that effort was that technology teams learned valuable lessons about how judges interact with information and technology.
Along came the 2016 JTC report and Arizona’s DETF in 2017. Arizona’s task force wrestled with various issues, including the technology itself, standardization, storage, management, privacy, security, funding, victims’ rights, and change management before making recommendations about the technical, organizational, and rule changes that would need to take place. The task force published its final report and recommendations in October 2017, including an abridged version in 13 Washington Journal of Law, Technology and Arts 165 (2018). Arizona’s Committee on Technology then went to work, with the expectation that implementation would be a slow, iterative, “next generation” sort of thing. But recently, that timeline changed significantly.
All Systems Go
The COVID-19 pandemic mandated the need to accelerate both planned and unplanned technology advances. It condensed and accelerated the Arizona court technology initiatives that had been in the works for some time. While technology changes had been gradual, with resistance, COVID-19 made changes immediate and imperative.
Virtual hearings became a requirement almost overnight and were “MacGyvered” in a way to keep the courts functioning and able to hold hearings to ensure access to justice. Court-affiliated online dispute resolution systems were expanded quickly, as were reliable ways to allow digital signatures and other access, so users could do business with courts remotely. Scheduling and reporting plans were changed so social distancing could be practiced where people needed to physically be in court.
Arizona’s Supreme Court Chief Justice Robert Brutinel established the COVID-19 Continuity of Court Operations During Public Health Emergency Workgroup, which I co-chair with Arizona’s Director of Court Services Marcus W. Reinkensmeyer. This workgroup, which we call the Plan B Workgroup (given that Plan A left town when COVID-19 arrived), is charged with identifying and expanding best practices to support core court operations during the pandemic and beyond. The Plan B Workgroup also is charged with making recommendations on the expanded use of remote appearances by telephonic and video conferences, e-filing, e-access, online dispute resolution, jury service, conduct of jury trials, grand jury, juvenile proceedings, and other measures delivering online court services.
Given prompt action in late 2020, by the first part of 2021, three of Arizona’s 15 counties are piloting a digital evidence system based on the Thomson Reuters Digital Evidence Center (the current version of the CaseLines product identified by DETF that, in 2017, was used in England and Wales). These three Arizona counties represent a mix of urban and rural courts, looking at civil and criminal cases, to test the viability of the product in various contexts with differing preexisting technology.
Classically, courts were defined as brick-and-mortar buildings, administering justice from 8 a.m. to 5 p.m., Monday through Friday, holidays excluded. The explosion of technology in the justice system, fueled by new digital technologies and greatly accelerated by COVID-19, has shown that’s no longer true. Technical advances demanded by the pandemic are a watershed event and have advanced technology adoption in Arizona’s courts by a decade or more in just months. The hope is those advances will improve the courts, their efficiency, capacity, and transparency, and most particularly in serving the public and providing access to justice. Bringing the digital evidence portal concept to Arizona that the DETF envisioned in 2017 is a critical part of that effort.
Where does digital evidence fit in?
To address new technologies and handle the barrage of digital evidence that this new breed of hearing required, Arizona identified six vital characteristics for a digital evidence system:
- User friendly: For judges, lawyers, litigants, court staff, and jurors to use, including in a remote setting.
- Widely accessible: To allow users to enter evidence and track progress easily, including by smartphone.
- Shareable yet controllable: To give the right people access to the right information at the right time.
- Scalable: To provide headroom for the quickly expanding volume of digital evidence.
- Integrable: To work seamlessly with other systems already in place in Arizona’s courts.
- Unifying: To allow for statewide adoption for a consistent user experience.
1. The Road to a More Efficient Judicial and Administrative Process, https://www.americanbar.org/events-cle/ecd/ondemand/410478928.
2. Joint Tech Comm., Managing Digital Evidence in Courts (Feb. 17, 2016), https://www.ncsc.org/__data/assets/pdf_file/0017/18521/digital-evidence-3-14-2016-final.pdf.