Retooling Criminal Justice:[1]
Forging Workable Governance From Dispersed Powers[2]

Hon. George Nicholson^[3]
Jeffery A. Hogge^[4]

            Criminal justice involves a wide range of professional participants, from lawmakers to law enforcers, prosecutors, and defenders, to tribunals and correctional agencies. For decades, even centuries, these criminal justice participants have worked mostly independently, sharing information by the printed page and face-to-face or voice-to-voice encounters, only as necessary. As the world has pulled into the fast lane of the information age, criminal justice has fallen behind dramatically. What was once a workable system is becoming increasingly unworkable as public safety falters, civil rights diminish, and public trust in criminal justice wanes. It is not enough to shovel faster. Criminal justice must enter the information age by incorporating technology as a tool to make the system run efficiently and effectively. This will happen only when the participants make enthusiastic common cause to integrate fully the information processes involved in criminal justice while maintaining independent those parts of their functions that must remain separate.

            Consider an example of criminal justice’s failure to enter the information age: With widely used technology, a court reporter in the trial court can transcribe the proceedings directly into a computer where, without being printed out, the transcription can be viewed instantly by the court and the parties. They can review the proceedings, search for words or phrases, and create and execute trial strategy. Although the technology has been available for years and some litigators have used it extensively, appellate courts have ignored the benefits of electronically-stored transcripts. The transcripts are available from the trial court in electronic form, but most appellate courts demand that the transcripts be printed out, shipped to the appellate court, and stored in large file rooms. The judges and court personnel then must sift through the pages to review the trial court proceedings. The appellate courts use the same paper-bound process for all other parts of the record on appeal, thus making handling, sequencing, warehousing, and retrieving of tons of paper a major function of the judges and personnel of the court.

            There is no reason to endure this manual labor. It is slow, inefficient, and costly. Yet many who are in positions to effect change are either unfamiliar with technology or unwilling to adopt it, preferring instead the old way, the way they learned to do it.

            While all participants in criminal justice use technology to some extent, rarely is there planning or cooperation among the participants to integrate their various applications of technology. Invisible but real barriers prevent the coordinated use of technology to promote the flow and utility of information between the participants. Removing these barriers will improve criminal justice overall by increasing efficiency and effectiveness and reducing costs.

            Make no mistake; there are valid boundaries among criminal justice participants established by constitution and statute. They relate primarily to the division of power among the branches--legislative, executive, and judicial--and the preservation of the adversarial system. These divisions are important for protecting delegated authority and preserving the separation of powers. Thus, it is appropriate for these boundaries to reflect the legally mandated functions of the entities. Nevertheless, these boundaries should not retard or prevent the flow of information and the sharing of technology, except as necessary.

            In 1952, United States Supreme Court Justice Robert H. Jackson described the proper relationship between the branches of government: “While the Constitution diffuses power the better to secure liberty, it also contemplates that practice will integrate the dispersed powers into a workable government. It enjoins upon its branches separateness but interdependence, autonomy but reciprocity.”^[5]

            Almost 40 years later, Judge Deanell Reece Tacha of the United States Court of Appeals for the Tenth Circuit echoed Justice Jackson’s separate-but-interdependent theme: “Common sense supports the notion that the public good--and the economy--would be served by enhanced communications between [the] branches. Even with enhanced dialogue, separation of powers would be preserved by each branch’s exercise of its primary power, structural constraints established by the Constitution, and the independence of the individual players.”^[6] She pointedly added: “Separation was not intended to mean alienation or to create antagonistic positions.”^[7]

            This model of interbranch cooperation extolled by Justice Jackson and Judge Tacha applies directly to the coordination needed among the governmental branches to improve criminal justice. It also applies analogously to the coordination needed among the participants in criminal justice who are not part of different branches of government but whose basic functions must be kept separate to some extent, such as the prosecutor and public defender.

            With the responsibility to maintain a workable government while retaining the spirit of the separation of powers and the discrete functions within criminal justice, the participants in criminal justice must energetically coordinate their efforts to enhance the enterprise. The technology is here, and criminal justice cannot responsibly ignore it.

Technology Invades Criminal Justice

            While technology is to be found within criminal justice, there is little evidence it has been welcomed as an enhancement to the process from beginning to end. The principal extent of technological implementation to this point has been automation of formerly manual functions. An example of this recently found its way to the United States Supreme Court in Arizona v. Evans.^[8]

            Isaac Evans was summoned to appear before a justice of the peace, but failed to do so. The justice of the peace issued a warrant for Evans’ arrest. The justice court informed the Maricopa County Sheriff’s Department of the arrest warrant. The sheriff had automated the task of keeping track of arrest warrants, so Evans’ arrest warrant was entered into the computer.

             Six days after the justice of the peace issued the arrest warrant, Evans voluntarily appeared before a temporary justice of the peace. The arrest warrant was withdrawn when Evans was released on his own recognizance. Normally, the clerk of the court telephoned the sheriff’s department to report the warrant was no longer in force, but no call was made in this case. The arrest warrant against Evans remained in the sheriff’s computer system.

            Seventeen days after the justice court withdrew the warrant, a Phoenix police officer stopped Evans for driving the wrong way on a one-way street. The officer had a computer terminal in his patrol car, so he checked for outstanding warrants on the sheriff’s computer. The computer reported the warrant, so the officer arrested Evans and found marijuana in his possession.

            The issue in Arizona v. Evans was whether the marijuana should be excluded as evidence. For years, based on what it calls the exclusionary rule, the federal high court has required evidence to be suppressed when peace officers err in making arrests and executing searches. The court has rested the exclusionary rule on its desire to deter willful police misconduct. In Arizona v. Evans, Chief Justice William Rehnquist, writing for a seven-member majority, declined to extend the exclusionary rule to suppress evidence when a court clerk errs and, as a result, a faulty arrest and search turns up contraband. The court held that, when peace officers act in objective, reasonable reliance on records that are incorrect because of the error of a court clerk, not the error of law enforcement, evidence recovered incidentally may be used to prosecute.

            That the task of keeping track of arrest warrants was automated at the sheriff’s department had no real bearing on Arizona v. Evans. If the sheriff’s department had kept the records manually, it still would not have reported to the officer that the arrest warrant against Evans had been withdrawn because the court clerk did not follow the normal procedure of notifying the sheriff’s department by telephone of the withdrawal. The Supreme Court’s majority opinion paid little attention to the minimal automation involved in the case and decided the case based on whether the error of a court clerk would require exclusion of evidence, although, in an aside, it blamed the problem on “computerization.” In reality, it was a failure in communication between the court and the sheriff’s department, not a computer error, that caused the problem.

            Justice Sandra Day O’Connor, in a concurring opinion, expressed concern about how computers are being integrated into criminal justice: “In recent years, we have witnessed the advent of powerful, computer-based recordkeeping systems that facilitate arrests in ways that have never before been possible. The police, of course, are entitled to enjoy the substantial advantages this technology confers. They may not, however, rely on it blindly. With the benefits of more efficient law enforcement mechanisms comes the burden of corresponding constitutional responsibilities.” While Justice O’Connor recognized the correctness of the majority’s analysis, she felt sufficiently compelled to fire a shot across the government’s bow: technology must be integrated responsibly.

            Justice Ruth Bader Ginsburg, however, went further. In a dissenting opinion, she declared: “Widespread reliance on computers to store and convey information generates, along with manifold benefits, new possibilities of error, due to both computer malfunctions and operator mistakes.” She continued: “Isaac Evans’ arrest exemplifies the risks associated with computerization of arrest warrants.” Despite her misapprehension of the cause of Evans’ grief (lack of effective communication) and her apprehension of computerization, Justice Ginsburg recognized the inevitable expansion of technology in criminal justice: “In this electronic age, particularly with respect to recordkeeping, court personnel and police officers are not neatly compartmentalized actors. Instead, they serve together to carry out the State’s information-gathering objectives. Whether particular records are maintained by the police or the courts should not be dispositive where a single computer database can answer all calls. Not only is it artificial to distinguish between court clerk and police clerk slips; in practice, it may be difficult to pinpoint whether one official, e.g., a police officer, caused the error to exist or to persist.”

            Justice Ginsburg’s view appears to ignore the necessarily discrete functions of the courts and law enforcement. The court must create the information--the warrant. Law enforcement cannot perform this function. This is true whether or not computers are used. Law enforcement must then obtain the information from the court and must be able to rely on the court because law enforcement has no ability to create the information itself. Prohibiting reliance on the court prevents law enforcement from performing its function, that is, acting on the information. Instead of making peace officers responsible for the accuracy of court information, the system should be improved so that law enforcement can rely on the courts and their data.

            Justice Ginsburg’s reaction to the breakdown in communication between the court and law enforcement emphasizes the problems in improving criminal justice in the information age. Technology, although given no unified invitation, has invaded criminal justice, and will continue to do so at an increasingly rapid pace. How will the information be stored? Who will be responsible for its accuracy? How will it be accessed? And by whom? What will be the respective roles of the participants in criminal justice to integrate data storage and retrieval? The challenge is to improve criminal justice by coordinated technological integration.

What Is Technological Integration of Criminal Justice?

            It doesn’t take a brilliant futurist to know criminal justice will eventually be paperless. All documents will be created, filed, stored, and retrieved electronically. Exhibits will be imaged--a process creating a photographic facsimile of the document or otherwise tangible evidence, which facsimile can be stored and retrieved electronically. The benefits of this paperless trend are many: dramatically lower costs, time savings, and improvements in storage, retrieval, portability, and access, to name a few. Despite these benefits, however, the participants in criminal justice cling to their paper products.

            The better use of technology in criminal justice is sooner than later and integrated rather than haphazard. To achieve this better use, the leaders and policymakers in criminal justice must be convinced of technology’s utility and cost effectiveness and cooperate in its adoption.

            A few introductory words about current technology are in order. This discussion of technology is needed because a major purpose of this essay is to convince those who are not computer literate of the advantages of technological integration. Generally, the computer literate need not be convinced of the value of technology and its potential benefit to criminal justice.

            We live in a day in which most of the more experienced participants in criminal justice, those who have earned positions of leadership and policymaking, learned to perform their basic functions the old way. Many less experienced participants in the system have only limited influence while, at the same time, they have a better understanding of technology. This mix of low-end technological expertise without authority but high-end technological ignorance with authority has prevented optimal implementation. Much like the arrival of the automobile as a modern form of transportation, the use of technology in criminal justice has prompted fear in many of those accustomed to the antiquated ways of performing the various functions. When they see a minor glitch involving technology, they are quick to cry, “Get a horse!” But as technology has matured, it has been more dependable and transparent. Just as we need not be familiar with the science of internal combustion, or even know that internal combustion happens under the hood, to benefit from an automobile, we need not be familiar with the inner workings of technology to benefit from it.

            Also contributing to the failure of policymakers to embrace technology whole-heartedly are the foibles of the past. Well-known are instances in which the government has expended large sums of money on a technology project with great expectations, only to be disappointed and embarrassed by partial or complete failure of the system to live up to its advance billing. Many factors contributed to these failures, none the least of which were the infancy of the technology, inexperience of the managers and technicians, and the failure to provide for integration and compatibility with other systems.

            The picture of current timidity and lack of technical knowledge may be overdrawn, but it provides a possible and, indeed, the probable explanation for the current chaotic state of technology in criminal justice. It also portrays the need for a simple and straightforward description of the technology and an equally simple and straightforward explanation of its utility and cost effectiveness to criminal justice.

            The information technology most used in criminal justice is word processing--the process of creating and storing documents electronically. As we discuss later, though this capability is in widespread use, it is not integrated.

            Performing a function similar to word processing, databases store information. Instead of documents, however, databases store information the same way you would enter information on a form or in a card file. For example, all the information from a driver’s license is stored with labels such as “name,” “birthdate,” and “address.” This labeled information can be retrieved in many different ways, such as retrieval of all names related to a certain address. Not just words and numbers, but also pictures, sounds, and full motion video can be stored in a database.

            A capability of computer technology that provides the possibility of effectively integrated criminal justice is what we will call “links,” known now as “hypertext links.” All of the information stored in word processing documents and database files can be interrelated. Jumping from one item of information to a related item in a different place, perhaps on a different computer in a faraway location, can be as easy as “pointing” at a reference to that item. The computer then obtains information directly from the source. The utility of these links will become evident when we look at how the different aspects of computer technology work together. But first, we must recognize another technology--telecommunications.

            Simply put, telecommunications allows people or computers to communicate over any distance. From a computer equipped with telecommunications capabilities, information can be retrieved from a source computer that also has telecommunications capabilities. In addition, full motion video can be transmitted, allowing what has been called “telepresence,” live participation at a remote site.

            An example ties these technological capabilities together to show their combined utility: A detective has investigated an adult for providing illicit drugs to minors. The detective identified a minor to whom the suspect sold illicit drugs, and the minor admitted making the purchase. Using a computer as a word processor, the detective prepares an initial report, followed by a request for an arrest warrant against the suspect. In the documents, the detective states that the purchaser was 17 years old. The words “17 years old” are underlined or appear in a color different from the normal text on the computer screen. This alerts the reader that the words are linked to another source of information. When the reader points to “17 years old,” using a pointing device, a Department of Motor Vehicles record, retrieved instantly from the DMV database, appears, verifying the detective’s allegation. In addition, the detective can include links to databases containing the police reports, a videotape of the interview with the minor, and the suspect’s identification and address.

            When the detective sends the request for an arrest warrant from the law enforcement computer to the prosecutor’s computer, the request consists only of electronic documents prepared by the detective, but those documents maintain their links created by the detective. The prosecutor reviews the documents and linked information and prepares an application, also linking the information provided by the detective if it is relevant. The prosecutor then transmits the application to the court’s computer by telecommunications. While viewing the application, the judge, using a computer in chambers, can verify the detective’s factual allegations by pointing to the links and viewing the source information that the prosecutor asserts supports the application. Without leaving the computer, the judge can do independent research on the law by accessing the computerized law library, which contains case law, statutes, regulations, and rules of court, as well as various treatises. The elements of the charged crime can be juxtaposed with the key supporting facts flagged by the prosecutor or detective. The judge can seek supplemental information from the prosecutor or detective by electronic mail or even have the prosecutor and detective “appear” for a live hearing on the matter by telepresence. If satisfied with the electronic application and attachments, the judge can issue and transmit by telecommunications an arrest warrant for immediate receipt by the detective, even in the field. The arrest warrant would be stored in the court’s database, accessible to all law enforcement agencies.

            To those acquainted with modern technology, this discussion may seem unremarkable. All of the technology discussed is already well developed and, indeed, common in private business. That point alone, however, emphasizes the immediate potential of criminal justice integration.

How to Integrate Criminal Justice

            Step-by-step, technology can enhance criminal justice, but only if bridges are built among the participants. We do not suggest that the functions should be duplicated--law enforcement should not have the duty to maintain and verify court records. Instead, the participants in criminal justice must coordinate to establish data reliability and allow appropriate mutual access to computer databases.

            Privacy concerns prompted by the speed and pervasiveness of computers must not stop appropriate coordination. Data in governmental files is public data, not private data, unless expressly proclaimed so by law. Although not rooted in privacy, the law imposes some access limitations premised on other considerations, such as insulating ongoing investigations or protecting crime victims and witnesses. Generally, however, most governmental data, including criminal justice data, should be open. Such openness provides the only practical means for the governed to oversee, assess, and control the behavior of their agents in the government. To assist in this oversight, the news media must have access to the information. Openness also allows the participants in criminal justice to obtain easy access to information required to fulfill their duties promptly and effectively. On occasion, this can mean the difference between life and death.

            Of the illustrations we give here, some applications of technology are already common in criminal justice, especially law enforcement, while others are yet to be made. We do not distinguish between current and future applications, but, instead, emphasize the utility of the technology.

Law Enforcement

            As was the officer in Arizona v. Evans, many law enforcement officers are equipped with computers in the field. Using cellular communications by way of hand-held computers and computers in their patrol cars, officers can use source information from computers within and outside their agencies. This is just one of many ways law enforcement has already employed modern technology in fulfilling its duties. Technology, combined with interagency and interbranch cooperation, allows law enforcement to function more effectively by enhancing public safety and minimizing interference into the affairs of the innocent.

            For example, voluminous records with investigatory value are kept by law enforcement agencies, other participants in criminal justice, and third parties such as governmental agencies. When a crime is committed, law enforcement can turn to these sources to assist in the investigation.

            Much information that is useful to law enforcement exists only on paper and requires intensive labor to maintain and use. This often results in delays or even failures in investigations. In many instances, latent fingerprints taken from a crime scene must be compared manually. Because there are millions of known fingerprints, this is a daunting and often fruitless task. With computerized fingerprint comparison, such analyses are now practical. Similarly, some jurisdictions have no automated way to learn the criminal history of a person arrested. Using computers and telecommunications, law enforcement can more effectively protect the public and law enforcement officers, preserve the rights of those with whom they interact, and identify criminals.

            Some information is best maintained centrally in electronic databases. Criminals do not limit their activities to particular political jurisdictions. As many do already, each state should have a central, computerized fingerprint repository, available electronically to every jurisdiction within the state and to the federal government and other states. The information must be accurate and available instantaneously. When a latent fingerprint is lifted at a crime scene or the fingerprint of an arrestee is taken, the law enforcement agency should be able to compare it immediately with known fingerprints in any of various state and federal repositories by telecommunications.

            Normally, the state department of motor vehicles maintains identification records. These records include each person’s name, date of birth, address, gender, hair color, eye color, height, weight, and an identifying number. It may also contain each person’s picture and fingerprints. This information should be stored in a database to which law enforcement and other criminal justice participants have instant access by telecommunications.

            It is also important to maintain centralized criminal history databases. Criminal histories can contain information from many different sources, such as arrests from law enforcement agencies, convictions from courts, confinement records from correctional facilities, and supervision records from parole and probation. Appropriate application of so-called “three-strikes” laws depends on prompt access to criminal histories which some mobile criminals have compiled in their travels through many different jurisdictions. When maintained by law enforcement at the state and federal levels, criminal histories become most useful to the individual jurisdictions of the state and federal governments because the information is centralized, easy to access, and instantly retrievable, locally or remotely. It is critical to update, verify, and, if necessary, correct the information frequently. State and federal databases can obtain records from local law enforcement, the courts, and other sources and integrate these records into the existing databases electronically, requiring little effort once the unified system is set up.

            Proper identification of those with whom they interact is a major issue in law enforcement. With driver’s licences and identification cards bearing a readable magnetic strip, an officer who obtains the license or card can run it through a computerized reader and get immediate identifying information, including a picture, name, physical description, and fingerprints. In addition, the computer can automatically contact (1) a department of motor vehicles database to verify the information recorded on the card and (2) a state criminal history database to check on warrants and parole or probation status. If the purpose of the contact with the person is simply to issue a traffic citation, the officer can select the proper statute and designate the circumstances of the infraction or offense and the hand-held or onboard computer will print out a citation for the driver, save it on the law enforcement computer, and transmit it electronically to prosecutors or to court. Later, it can be accessed, read-only, from the electronic court file by prosecutors, defense attorneys, accuseds, and the courts, themselves.

            If an officer wishes to act on information found in the state criminal history database, further verification may be necessary. To act on an arrest warrant, for example, the officer can obtain the original information from the court from which the arrest warrant issued by way of a link from the state criminal history database to the original court record. In the field, the officer can access the arrest warrant in the state criminal history database. By using a pointing device, the link is activated, summoning the court’s original arrest warrant for the officer to view. Thus, as discussed later in this essay, the officer relies on the original court record when making the arrest, not on a notation concerning that court record in the criminal history database.

            This limited discussion does not begin to address all of the useful information that can and should be available to law enforcement instantaneously. Information concerning DNA, gangs, contraband, and many other subjects should be included.

            We illustrate the utility of this technology with a fictitious case: A man drove to a convenience store. He walked into the store and up to the counter, pointed a firearm at a store employee, and demanded money. He left the store moments later with $200 from the store’s cash register. A camera at the convenience store captured a picture of the perpetrator’s face as he pointed the gun at the convenience store employee. The picture was transmitted electronically to the police, and it appeared on the computer screens of patrol cars in the area along with the description of the perpetrator and his crime, all within seconds of the robbery. An officer arrived at the convenience store and lifted a latent fingerprint left by the robber on the counter. By telecommunications, he transmitted an image of the print to local police headquarters, and within minutes a computerized match was made in the state fingerprint repository. The suspect’s identifying information was retrieved from his DMV record and state criminal history file. Within a few more minutes after the robbery, the suspect’s picture, along with his last known address and a full personal description, was transmitted to officers. Another officer interviewed a witness, recording the interview directly into a database for later evidentiary use, and obtained a suspect vehicle license number. He also obtained a description of the vehicle and address of the owner from the DMV database and transmitted this information to officers in the field. The car was soon seen and stopped with the suspect driving. As a result of all of this information, immediately accessible to officers, a quick and accurate determination of probable cause to arrest was made. The rapid availability of information from so many sources, helped law enforcement to protect the public by apprehending a robbery suspect while protecting the rights of others who were promptly eliminated from suspicion.

Prosecutors

            In many jurisdictions, the status of integration between law enforcement and the prosecutor consists of a hand-off of reams of paper police reports to a prosecutor who is responsible for manually sifting through the stacks of often uncollated reports and deciding whether and what to charge and whether to seek an arrest warrant from a judge. This, of course, ignores the reality that the detective filing the report is much more familiar with what the suspect did and what is in the papers given to the prosecutor.

            Technological integration of law enforcement agencies and the prosecutor’s office will enable peace officers to pass along, on-line, the benefits of their familiarity with their cases to the prosecutor. From resources prepared and maintained by the prosecutor (or an organization of prosecutors) and made available to law enforcement agencies by computer, the detective can identify instantly and reliably the basic legal elements of the crime the suspect is believed to have committed. The detective inserts those elements directly into the summary of the crime report and creates links from each element to the place either (1) in the crime report and supporting documents, or (2) in the actual evidence preserved electronically, thus establishing the existence of that element. For example, if the detective believes the suspect committed murder, the detective can insert the elements of murder, including premeditation, in the summary of the crime report. A link can be made from the element of premeditation to the parts of the crime report bearing on that issue. The detective can also create a link to an interview with a witness, recorded directly into the police database, in which the witness recounted having heard the suspect say he was going to find the victim and shoot him. The prosecutor has full multimedia access to the video recording of the interview in the police database through the links created by the detective which pinpoint the most relevant parts of the interview. All outside access to the law enforcement database, however, would be read-only, that is, those accessing the database from outside would not be able to change it. This integration between law enforcement and prosecution would increase the speed and reliability of the prosecutor’s decision concerning appropriate charges, lessen the prosecutor’s need to contact the detective repeatedly to identify evidence or answer questions, and reduce the time needed to perform these functions.

            Using the detective’s summary (keyed to the elements of the offense and linked to the evidence) and the prosecutor’s additional research, the prosecutor uses a computer to draft a charging document and an application for an arrest warrant. But the utility of the detective’s summary does not end there. As the case is passed electronically from the prosecutor’s office to a judge for review and consideration of an arrest warrant, the benefit of the detective’s expertise remains, along with all of the additional investigation and legal interpretation added by the prosecutor. From this electronic file the prosecutor later generates, by computer, a trial strategy, a witness list, an evidence summary and checklist, jury instructions, and many other items that are currently generated manually and redundantly in each case. The prosecutor also links parts of the electronic file to the legal authorities, statutory or precedential, that give support for, or present obstacles to, the prosecution.

Defense Attorneys

            The defense attorney creates an internal electronic file similar to the one maintained in the prosecutor’s office. Into this file, the defense attorney puts the charging document, any arrest and search warrants, a trial strategy, a witness list, an evidence summary and checklist, and jury instructions, all linked to the outside electronic sources of evidence and to favorable and unfavorable authorities. To obtain discovery from the prosecution, the defense attorney can access a central criminal discovery database that contains the discoverable portions of the prosecutor’s electronic file. In return, the defense attorney must make accessible to the prosecutor the portions of the defense file that the defense, by law, must divulge.

            Model jury instructions are usually the best source of the elements of crimes and defenses. They supply the peace officer, prosecutor, and defense attorney with a basic description of the law in a specific case, that is, the law by which the jury will be formally instructed by the judge to use in determining culpability. It is odd how the dispositive law, as delivered by the judge to the jury, is presently treated so casually by many practitioners. If created and updated authoritatively, these jury instructions provide a complete and comprehensible outline for the investigation, the prosecution, and the defense. To be useful, though, the jury instructions must be current and constantly available electronically for transfer directly into the files of the law enforcement agency, the prosecutor, and the defense attorney.

            While the facts must be discovered and preserved by the prosecution and the defense, access to the law must be provided by the law librarian. It is critical that the legal authorities are up-to-date and accessible. When a Supreme Court decision is issued on a search and seizure issue relevant to a case the investigator, prosecutor, or defense attorney is working on, for instance, it should be immediately available on the system supported by the law librarian. Taking it one step further, an “expert system”--a computer system that makes recommendations and predicts outcomes--could alert the investigator, the attorneys, and, ultimately, the court of the new case’s possible applicability to the issues in their case. Such expert systems do not jeopardize the human touch or diminish professional accountability. Instead, they enhance the work by more fully informing the decisionmaker.

Trial Courts

            The trial courts have begun only recently to adapt modern technology to their functions. With a few high-profile exceptions, such as the O.J. Simpson trial, use of technology has been limited to docketing and other administrative functions, word processing, and some legal research using Lexis, Westlaw and in-house CD-ROM collections. This is judicial technology in its infancy--like buying a Ferrari to listen to the stereo. Because of the usefulness of technology in nearly all aspects of the judicial process, technology should (and will) be pervasive. The reasoned application of technology serves to enhance the contested proceedings, not change the basic philosophy underlying those proceedings. Thus, the rules of evidence, burdens of proof, and other elements of the adversarial process will remain intact.

            The judicial process is invoked when a prosecutor seeks a search warrant, files a charging document, or applies for an arrest warrant. As we explained, these tasks can be accomplished electronically from the police station or the field, through the prosecutor’s office, to the courts. Once the court clerk has accepted the electronic charging document, it becomes the foundational document in the paperless case file, available to judges and court personnel, the prosecution, the defense, the public, and the news media. After that, every pleading, motion, and order is filed electronically in the court and linked to the charging document.

            In addition, a court reporter records all testimony using computer assisted transcription, and the transcript instantly becomes part of the file, available immediately to the court and the parties. The court and the parties can view the transcription on in-court terminals, search for specific words or phrases in previous testimony, statements, declarations, affidavits, depositions, and any other document placed in the court file, and instantly dispute or confirm testimony or representations. The court and the parties can “mark” places in documents for use during questioning and link those places to different places in the same document or to other documents, thus crafting strategies, questions, and arguments at the computer terminals designated for them in the courtroom. Photographs, charts, imaged documents, video and audio recordings, and even jury instructions are also available to the court, the parties, and the jury on the in-court computers.

            Orders of the trial court are not only recorded in the electronic file, their actual entry into the electronic file by the judge from the bench is the order. If the judge does not enter the order electronically, there is no valid order. The significance of this can be seen in the situation presented in Arizona v. Evans. If the order withdrawing the arrest warrant against Isaac Evans had been an electronic judicial act, the police officer who stopped him could have directly accessed the court file and would have seen that the arrest warrant had been withdrawn. This places the duty of entering dispositive acts, orders, or decisions on the court, where it should be, and eliminates most clerical mistakes that result from failures of communication. Those who need to know can always access the file, from court or remotely and in read-only format, to find out the exact status of all orders and proceedings.

            Sentencing presents a prime opportunity for the trial courts to use technology to perform better their duties. Optimal background information concerning the defendant and precision in declaring the sentence are both essential to an adequate sentencing process. The judge must obtain information beyond that received during the trial--circumstances that, though irrelevant to the issue of guilt, are relevant to the issue of sentencing. In California, the judge generally receives this information from the probation department. By using the technology and resources described, the probation department can research the defendant’s background. When the investigation needed to prepare the report is complete, the probation officer can compile and file the report electronically and within the relevant time limits. This report is in a set format, which allows the trial judge to obtain the necessary information without deciphering the format of the report each time. Filed electronically, the probation report is available to the judge and the parties timely and simultaneously. The parties then have the opportunity to comment on the report, with appropriate links to the parts of the report that are the subject of the commentary.

            Trial court sentencing requires precise findings and calculations. This exercise is especially suited to a computer-assisted process. While the sentencing judge makes all of the critical decisions, the computer, in script form, can guide the judge through the steps to achieve a proper and just sentence. Much like model jury instructions, sentencing scripts can be reviewed in the appellate courts in specific cases and then modified as appropriate. In that way, the judge need not reinvent the process, thus risking error, during each sentencing hearing.

Appellate Courts

            In his review of the appellate court system in California, Professor Clark Kelso noted a “substantial gulf” exists between the trial and appellate courts. By this he meant the different levels of courts do not communicate effectively with each other. Communication takes place almost exclusively through the appellate courts’ formal written opinions.^[9] The gulf is limited neither to California nor to the appellate courts’ relationship with the trial courts. The technological and informational separation exists in state and federal systems and generally between trial courts, appellate courts, and all other participants in criminal justice.  Technology can be used as a tool to overcome this problem.

            When a party appeals, the electronic file is ready to be transmitted to the appellate court. There is no delay while the clerk or a reporter gathers, types, or copies it. The clerk sends the file--complete with pleadings, motions, orders, transcripts, exhibits, and jury instructions--by telecommunications to the appellate court. While it sounds simple, the technological integration between the trial and appellate courts is, now, virtually nonexistent, amounting almost exclusively to the exchange of tons of paper annually.

            Of particular concern in many jurisdictions is administrative delay in capital appeals. A well-known source of delay is in the preparation of the record on appeal, which is nothing more than the flow of information from the trial court to the appellate court. This source of delay can be all but eliminated by applying technology to the process. Proceedings will be transcribed electronically by a court-employed reporter as they occur. These reporter’s transcripts will be public data available immediately in read-only format and thus can be transmitted electronically by the trial court to the appellate court as soon as the trial concludes. In addition, the clerk’s transcript, which contains the remaining record on appeal, will be maintained electronically because the court will require electronic filing of all pleadings, motions, and other submissions. The trial judge, who will be responsible for the record, will certify the record and see that it is transmitted to the appellate court soon after the conclusion of trial court proceedings. These changes to the process will cut months or years off the current prebriefing time in capital cases.

            Once the capital record on appeal is stored electronically in the appellate court, that court will require electronic filing of all appellate briefs and motions. This will not only provide for all of the advantages discussed above concerning improved access to the file and links to precedential and evidentiary authority, it will also serve as the electronic record to be transmitted to federal courts when habeas corpus petitions are filed.

            In writing an appellate brief, an attorney must cite comprehensively to two sources: the law and the record. With access to the record on appeal as transmitted electronically from the trial court to the appellate court, the attorney can create links in the brief to the record. In addition, links can be made to the legal authorities relied on in the brief.

            Traditionally, a citation in a legal brief to the record on appeal established that counsel manually searched the record and found support for the brief’s factual or procedural assertion. The citation also signaled the court to search, again manually, in the record using the citation as a guide to verify that support. In an integrated electronic environment, however, the citation to the record can be more useful and productive than in the past. The citation in the legal brief can be an electronic link to the record, a gateway to the exact part of the record relied on by the author of the brief. Similarly, the author of the brief can create electronic links for citations to the law. By pointing at the citation, the reader of the brief can jump directly to the relevant location in the case, statute, regulation, or treatise cited.

            While technological integration will bring great benefits to the appellate process, it will also create new issues that must be resolved. Beyond the scope of this essay but an issue of rising importance is the question of whether appellate courts should review trial court proceedings by viewing a video record. Although technologically possible, such review would alter the appellate process itself, making it not only possible but perhaps necessary to review matters currently beyond the scope of appellate review, such as the demeanor of a witness or the bias of the trial judge, attorney, or juror betrayed by facial gestures or body language. This issue goes well beyond the simple question of technological possibility, yet the California Supreme Court may have inadvertently taken its first step down the path of expanded review. Considering a claim of prosecutorial misconduct during closing argument, the court stated: “We have reviewed a videotape of the closing arguments, and conclude that, taken in context, nearly all of the challenged remarks properly served to remind the jury of its duty to render a decision based on the evidence and nothing else.”^[10] Although the court could have deleted the reference to the videotape without affecting the decision, it did not, thus implicitly inviting challenges to trial court proceedings based on a videotape of the proceedings. This is but one example of how criminal justice has allowed technology to invade its processes without a reasoned and integrated plan of anticipation and implementation.

            Technology also provides new possibilities not available in the past.  In most states, appellate courts produce and distribute opinions to a contract publisher.  The publisher then collects the opinions in bound volumes or stores them electronically and sells them back to the government.  Likewise, legislatures produce the statutes, but the government purchases bound volumes and electronic services containing those statutes.  With the modern availability of electronic storage and telecommunications, appellate courts and legislatures must reassess this process, analyzing the policy and costs involved.  It may be better to establish internal systems to provide access to the law.  States that have already established such internal systems can serve as the testing ground and model for those that have not.

Corrections, Probation, and Parole

            Supervision of the accused while released pending trial and the convicted after trial pending sentence or appeal plays a critical role in criminal justice. Accordingly, it is vital that information flow efficiently between law enforcement, corrections, probation, parole, and the courts. For example, when considering whether to release the accused on bail or otherwise, the court needs to know the accused’s criminal history, including any probation or parole status.

            When a defendant is convicted and sentenced, the court must instruct corrections or probation officials concerning the disposition of the case. By electronically forwarding, promptly upon pronouncement of the judgment, a notice to the appropriate agency with a link to the actual commitment or probation order, the court insures that (1) the agency is properly advised of its duty as to the defendant and (2) the notification precedes the defendant’s arrival into the agency’s system. Since courts retain jurisdiction over cases for varying periods after disposition, prompt electronic notification of the receiving agency also allows the agency to screen the disposition and apprise the court of any ministerial errors that can be corrected without appellate review.

            When a law enforcement officer detains a probationer or parolee, information must flow immediately. The officer needs timely data concerning the person’s criminal record. If this information is incomplete or slow in coming, the officer may act in ways that compromise either public safety or the rights of the detainee. In addition, the agent who supervises a probationer or parolee must learn promptly about an arrest so appropriate action can be taken.

Educational Institutions

            While governance generally is conceived in terms of the executive, legislative, and judicial branches, more is involved when considering schools and their relationship to criminal justice. Public schools are broadly governed statewide by the governor and the legislature through the budget process and by entities such as a state board of education or a superintendent of public instruction. They are also governed to some extent by county offices of education and individual school district boards. Federal law comes into play in some circumstances, including access to records about students and staff; crimes committed on campus, especially those involving guns; and expulsions for possession of a gun.

            If that were not complicated enough, many activities occur in school that implicate many other governmental entities. Thus, systematic interaction and cooperation may be required daily with judges of the juvenile, criminal, traffic, and family law courts, court-appointed special advocates, county counsel, private lawyers, prosecutors, peace officers, probation and parole officers, corrections officers, public and private health care professionals, social workers, and members of city councils and boards of supervisors.

            A number of issues pertinent to criminal justice come into play. They include school attendance, child abuse and molestation, child support, drug traffic and abuse, gang violence, rape, and even murder. There are mandatory duties to report evidence of some of these crimes. Finally, many students and even some faculty and staff may be on probation or parole while they attend, teach, or work in and around schools. Many schools are required to do background checks, working with local law enforcement and departments of justice, on all potential employees and volunteers who come in contact with children. It goes without saying that educational institutions at all levels are duty bound to protect their faculties, staffs, and students.

            Such duties require vast and often redundant recordkeeping systems, most of which are inadequate and slow because they are maintained manually. These are important concerns when dealing with hard crimes. In addition, a high volume of data is implicated with campus loitering, truancy, curfew violations, vandalism, and traffic offenses by students and campus trespassers. With the advent of computers and telecommunications, it is now technically possible for all these agencies and organizations to compile and use centralized, non-duplicative databases on all these matters. With leadership from the top, they can coordinate the compilation and use of data, giving high priority to interagency uses, especially those that relate to campus and community health and safety.

            One illustration will establish the necessity for multi-agency communication and cooperation when dealing with juvenile justice. Assume a sixth grade student brings a realistic appearing toy handgun onto an elementary school campus. He is seen by a playground monitor to threaten several first graders. Using a cellular telephone, the monitor calls 911 and requests immediate police assistance. Moments later, when the police arrive, they confiscate the toy handgun, which appears real without close examination, and take the sixth grader to juvenile hall.

            Subsequently, on a Friday, the juvenile court judge sustains a petition which was earlier filedby the prosecutor and investigated by the probation officer. The judge finds the sixth grader has done something that would be a crime if done by an adult. However, because he has no other record of similar misbehavior, the sixth grader is placed on probation by the judge subject to several conditions, including three that require him to attend school, bring no weapons or replicas on campus, and apologize to the first graders he threatened.

            The judge's probation order is electronically stored in a central computer and immediately telecommunicated to the school district and the elementary school principal's office. This permits the principal to anticipate and prepare for the sixth grader's return to school on Monday. Thereafter, reciprocal telecommunications keeps the school district, principal, juvenile court judge, probation officer, and police department connected, so that all may be kept abreast of the sixth grader's progress. Should it become necessary, all may thus play responsible, common sense roles promptly to deal with the sixth grader and to protect all the children, faculty, and staff at the school and the public throughout the surrounding community.

            Colleges and universities need similar communication and cooperation. Crimes occur on their campuses as well. Probationers and parolees are out and around. It is virtually impossible to keep tabs on them all and to protect students, faculty, and staff without working with a multiplicity of others, using technology in similar ways to those used by public elementary and secondary schools. Congress has mandated colleges and universities to warn parents and students of the nature and extent of crime and violence on their campuses and in surrounding communities.^[11] Not uncommonly, elementary and secondary school campuses are on or near post-secondary school campuses. Thus, respective officials must establish electronic communications and share data to help each other protect these people more effectively.

Other Participants

            This discussion concerning the improvement of criminal justice through technological integration is by no means complete, nor is it intended to be. The possibilities are limited only by the willingness of the participants, working together, to develop better ways to serve justice. In addition to those mentioned above, video arraignment of the accused and telecommunicated interviews between inmates, counsel, and probation are important, though elementary, uses of technology. Social services and many other institutions are also involved in and contribute to the quality of criminal justice, and their cooperation and capabilities will be needed to make the technologically integrated system work. The legislature can also benefit from technological integration because it can better educate itself concerning what is happening in criminal justice if the information, such as reports and statistics, is current and readily available. This description is intended to illustrate some of the possibilities and encourage the participants in criminal justice to adopt technology intelligently and enthusiastically, not to wait and have it forced upon them with undesirable results.

            Furthermore, we do not wish to imply that integration would not also benefit the civil justice system. To the contrary, many of the same benefits could be obtained by a similar technological integration of civil justice. By limiting our discussion to criminal justice, we hope to show the benefits in a distinct system with easily identifiable participants. If criminal justice were integrated technologically, civil justice would follow. There are signs civil practitioners and some civil courts are well ahead of their criminal practice counterparts in recognizing technology as a tool of operation and integration. Perhaps that has something to do with the false perception among many criminal justice participants that technology is a luxury, not a cost-effective tool to enhance the system.

Education and Training for Criminal Justice Participants

            Just as criminal justice is operationally balkanized, so are the separate educational entities, programs, and materials that exist for the participants. There are local, state, and national colleges, training programs, and publications for peace officers, prosecutors, defense attorneys, judges, and officials from probation, parole, and corrections. Virtually none of them cooperate on programs and publications. Virtually all of them face two costly problems: (1) each student, at great personal or institutional expense, must travel, stay at a hotel, and be physically present at the training location or the instructor must take the show on the road, incurring significant travel expenses and presenting the instruction many times, and (2) reading and resource materials are out-of-date or, at least, difficult to update because they are printed, bound, and distributed on paper.

            In addition to cost, this unfortunate circumstance leads to disparities in the quality of justice as between citizens located in jurisdictions in which participants are more active, or less active, in pursuing continuing education and using the most current reading and resource materials. This is disturbing because the constitution mandates uniform application of the law. Technology brings with it the promise of promoting equal enforcement and protection.

            Criminal justice educational entities can use technology to increase their own effectiveness. Educational programs once held in physical gatherings can be held in electronic gatherings. By telepresence, students can attend and participate in remote events without physically leaving their offices or chambers. The instructor’s effectiveness can be enriched and the student’s comprehension improved by appropriate use of computers in the education program.^[12] Reading and resource materials can be maintained electronically. While updating the printed materials is a considerable expense, requiring printing, binding, and distribution, updating electronic materials is less expensive because there is no need to do anything except update them. This reduction in cost would allow more frequent updates.  The materials can always be available by telecommunications, and the recipient can be sure the materials are the most recent.

            One illustration will suffice to make clear the need for technology in the educational programs: In most court systems in America, there are too few judges. Even so, mandatory continuing education is required for judges in many states. The limited number of judges to do the work is reduced when judges must attend classes away from court. By providing training programs by telepresence or through interactive computer programs, judges need not take as much time away from court duties and expend personal or court funds on travel and accommodations.

            Just as important, reading and resource materials for judicial education and training can be fully paperless. Judges who author and edit such materials can do so, even daily, by telecommunications from their homes or chambers. Judges who use the materials can view, download, search, and apply them whenever and from wherever they happen to be. No printing costs. No warehouse costs. No postage or shipping costs. And, most importantly, no bulky out-of-date reading and resource materials.

            By coordinating their educational efforts, criminal justice participants can share the technology and information needed to educate the individuals, thus providing better training and preserving precious resources. The entities can cooperate on educational programs and participate together in the acquisition and use of the technology, thus eliminating costly redundancies. Because of the separation of powers and the necessity for varying degrees of confidentiality for the various entities, there will be a continuing need for separate education, even as the entities begin to share common elements and resources. Recognizing this limitation, criminal justice participants should work together to improve their educational programs.

Cooperation in Integration

            The integration of criminal justice will not happen without cooperation from its participants. No single participant can force this integration on the remaining participants. Indeed, any attempt to do so may be met by firm resistance and seen as an infringement on the right of the participant to perform its own function independently.

            Presently, there is no effective mechanism to recognize the need for and encourage cooperation. Since criminal justice involves private parties and three branches of government, at local, state, and federal levels, among which may exist self-interested and adversarial relationships, substantial inertia in the system discourages efforts to change it. Each participant tends to view narrowly its own role and how it can fulfill that role. Nevertheless, what is best for the individual participant, may not be best for the system. A narrow view of criminal justice can be counterproductive when the individual participants make decisions that favor themselves but burden the system. An example of this counterproductivity is when a prosecutor applies for an arrest warrant and, instead of laying out the case and establishing cause for the arrest by specific references to the law and the evidence, deposits a voluminous paper case file on the judge’s bench hoping the judge either will sift through the file and the law to find probable cause or will just issue the warrant solely on the prosecutor’s representation that cause exists. While this approach may save time and money for the prosecutor, it is an unacceptable burden on the court and criminal justice as a whole.

            Professor Kelso’s suggestion for facilitating communication between the trial and appellate courts in California can work to integrate criminal justice generally. He proposed an Appellate and Trial Courts Coordinating Council made up of appellate and trial court judges, court clerks, and various other administrators. His proposed council would be associated with a law school to encourage research and criticism.^[13] Applied to the task of integrating criminal justice, a similar system-wide coordinating council, called the Criminal Justice Coordinating Council, could break the administrative inertia against using technology throughout criminal justice.

            The Criminal Justice Coordinating Council would be a cooperative effort of the legislative, executive, and judicial branches and would include leaders from the governor’s office, the state legislature, law enforcement, prosecution, defense, trial courts, appellate courts, probation, parole, corrections, and educational institutions.^[14] While each entity must have its own internal technology committee to oversee implementation of technology, the Criminal Justice Coordinating Council would coordinate the broader, shared duty to integrate the information flow throughout criminal justice. The council, which need not be limited to issues of information flow and technology, would assess and correlate the resources and needs of the entities and avert turf battles, influencing the entities to proceed in a way that improves all of criminal justice.

            The Criminal Justice Coordinating Council must identify the transcendental values of criminal justice, such as the right to confront one’s accusers, and perpetuate them, while refining or discarding altogether the outdated parts of the system. Ultimately, the council’s responsibility must be to preserve and enhance the rule of law. A means to fulfill this responsibility is by adoption of technology and elimination of what may have been necessary in the past but is wasteful today. At times, this will not be a comfortable task. Positions may be altered or eliminated. Procedures that have long been part of the culture of criminal justice may turn out to be unnecessary. Traditions must be reexamined in light of the newer, more efficient and effective ways of achieving justice. In this pursuit, cost must be a consideration, not an afterthought.

            Without a coordinating council or some similar catalyst organized at a state level, criminal justice can be expected to languish as an inefficient anachronism. Public perception of the system will continue to decline. And, most importantly, the safety and civil liberties of the public will continue to wane. All the while, technology will invade the process. The invasion will be chaotic, and there will be no effective forum to resolve resulting conflicts. That criminal justice has never been effectively integrated does not justify the continuation of old ways. If it is not already, criminal justice will be perceived as sluggish and unreliable, an institution slowly heading toward collapse.

            The information age has brought with it not only the prospect but the expectation of better systems. Criminal justice cannot escape this expectation.

Conclusion

            With the availability of useful technology, criminal justice has an unprecedented opportunity to become more efficient and effective through integration. Unless a coordinated effort is made to use technology appropriately, however, its application in criminal justice will continue to be isolated and haphazard. Better coordination can be achieved only when all of the participants in criminal justice work together, such as through a Criminal Justice Coordinating Council.

            By using current technology to integrate the system, criminal justice can also position itself to adopt new technologies. Indeed, the need for coordination will never end. Emerging technology can be tested and adapted to criminal justice’s unique needs. Setting aside misapprehension concerning technology and unnecessary isolation, criminal justice participants can “integrate the dispersed powers into a workable government.”^[15]