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A federal task force studying the use of technology in the criminal justice system has reported that electronic evidence is playing a growing role, and the increased usage has judges and attorneys worrying about its costs and the need to train users. Judges, in particular, are also concerned that “there be an equity of resources between prosecution and defense counsel,” according to the report. The task force — composed of federal court personnel, prosecutors, defenders and private attorneys — is looking at technology’s effect on the cost of collecting, analyzing and presenting evidence and at ways of fostering cooperation among its users. “We’re going to have to promote cooperation between defense counsel and [prosecutors] in cases where evidence is going to have to be presented through electronic means,” says Chief Judge John Bissell of the District of New Jersey. Discovery-related topics also are an issue. For instance, when one party pays to put information into electronic form, what part of that cost can be passed on to a party seeking discovery? Another concern is the risk that by selecting certain documents, a party may disclose impressions about them that “may implicate the work product or other privilege.” Recommendations by the group — known as the Joint Administrative Office/Department of Justice Working Group on Electronic Technology in the Criminal Justice System — include: � Increasing training for court personnel, as well as government and private lawyers. � Continuing to study the issue at the state and local level, including the impact of electronic evidence on juries. � Examining whether trial-specific document repositories set up on Web sites are useful, necessary and feasible. � Avoiding blanket requirements for use of electronic evidence, especially in smaller cases that don’t warrant the expense. � Equipping courtrooms for use of the technology. � Identifying and preserving electronic evidence for appeals. Many of the working group’s concerns are already being addressed. Bissell spoke July 22 with U.S. Magistrate Judge John Hughes, the only judge among the task force’s 18-members, about forming a local working group. Such a committee could help develop training programs and serve as a clearinghouse to answer questions on the subject, says Hughes. The group might be asked to explore whether the local criminal rules need to be revised, adds Bissell. Since March 24, 1999, a standing order by Bissell’s predecessor, Judge Anne Thompson, has provided for electronic case filing and electronic public access, and judges and lawyers have been striving to deal with the implications of electronic evidence. Though Bissell has yet try to a case where electronic evidence is used, several cases in which prosecutors indicated they would adduce it ended in pleas. Bissell says other judges, in cases involving taped conversations, told him that prosecutors have been making their equipment and its operators available to the defense for use on cross-examination. That was Darren Gelber’s experience last year in trying a fraud case before U.S. District Judge Alfred Wolin. Assistant U.S. Attorney Alain Leibman was able to access scanned exhibits at the touch of a button for display on a screen during trial, recalls Gelber, a partner with Wilentz Goldman & Spitzer in Woodbridge. Defense lawyers were allowed to use the same equipment by requesting certain documents that were called up by the government employee operating the system. Discovery has also been affected. Whereas prosecutors once might have turned over multiple tapes of wiretapped conversation, they now burn them all on a single CD-ROM disk, says Gelber. He is also seeing more e-mail evidence. Aside from the convenience, Gelber says sophisticated technology affects jurors. There is a “growing expectation that the presentation in the courtroom will be visually stimulating,” he says. “The day is coming soon when we are going to make a more affirmative use of it in criminal cases rather than relying on the government.” Jerome Ballorato, a Princeton solo practitioner, describes a more mixed experience in defending a client in a recent securities fraud trial in the Southern District of New York. The prosecution had scanned thousands of documents and offered to make them available in electronic form to the four defendants. One law firm took up the offer but still had to buy expensive software to match the format. Ballorato and the other two defense counsel could not do the same and had to pay for hard copies, he says. During trial, documents were displayed on a large screen for the jury, with individual monitors for the judge, the witnesses and the lawyers. A document could be shown to everyone but the jury until it was authenticated. Prosecutors allowed the defense to make use of the system, but that was no help for defense documents not in the government’s possession. It was also no help in preparing for trial, says Ballorato. Another advantage, though, was the ability to synchronize the digitized playback of taped conversations with a display of the accompanying transcripts. As impressive as the electronic data may be, Ballorato was struck by jurors’ requests to see the original document. He speculates that jurors felt a psychological jolt on seeing a displayed document disappear when the machine went off. Other concerns about electronic evidence are already being addressed in New Jersey. The U.S. Attorney’s Office has its own working group on the subject, says spokesman Michael Drewniak. Federal Public Defender Richard Coughlin says his office ran a training program on technology last January for private panel attorneys. While discovery of electronic data can raise privilege concerns, so can discovery of paper documents, Coughlin points out. When defense attorneys review documents at the office of the prosecutor or the FBI, they must ask for copies, possibly disclosing their strategy to the adversary. It would be far better, and more pleasant, to get everything on a disc, says Coughlin. Though the working report focuses on the criminal justice system, similar issues arise in the civil context. Richard Carelli, a spokesman for the federal AOC, says he knows of no parallel group working on the use of electronic evidence in civil litigation. The district court in New Jersey has been considering use of electronic information in civil cases and is “a step further down the road,” than on the criminal side, says Bissell. He expects within a few weeks to publish for comment a proposed revision to local civil rule 26.1 that would provide for discovery of information kept in electronic format and for its earlier disclosure. The federal working group is not done and will continue to study the issue, says Hughes. The next meeting is set for today.

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