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The Judicial Conference of the United States voted last week to allow the public online access to criminal case files. The judges’ conference, which sets policy for administration of the federal courts, based its decision on the experience of 11 pilot courts, which yielded “no evidence of harm to any individual.” Online access will not be available immediately. Before it is extended beyond the pilot courts, guidelines must be drafted by conference committees governing court administration, case management, criminal law and defender services. Moreover, access will not be absolute. Some documents will not be available and information will be redacted. As with civil cases, only the last four digits of Social Security and financial account numbers should appear, and minor children are to be identified by initials only. Under the pilot courts’ guidelines, no public access was allowed to unexecuted warrants, presentence investigation reports, judges’ sentencing reports, juvenile records or sealed records. Birth dates, Social Security numbers and account numbers also were redacted. The conference approved Internet-based access to records in September 2001, adopting a presumption of public online access to federal files “unless sealed or otherwise restricted by statute, federal rule or Conference policy.” At that time, the conference prohibited public remote electronic access to criminal case files, based on privacy, safety and law enforcement concerns, effectively halting access to such files that some courts had been providing. The only civil exception was Social Security cases, and that was for privacy reasons. Amended civil and bankruptcy procedural rules to enable electronic filing and service of most documents went into effect on Dec. 1, 2001. When it barred access to criminal files in September 2001, the conference said it would reconsider the issue in the next two years based on the outcome of a pilot program, which it began in May 2002. According to a May 7, 2003, report on the program, a majority of judges, lawyers and court staff in the pilot courts — comprised of the 8th U.S. Circuit Court of Appeals and 10 district courts, none in the 3rd Circuit — all liked the easy, 24-hour access, the ability to track cases and the organizational benefits. On the down side, courts were saddled with the added role of gatekeeper in deciding which documents to make available, and court staff bore the organizational burden of scanning and screening documents. The loss of control over documents and information also spurred concerns that jurors or witnesses would access files. Many participants worried that slip-ups might expose sensitive documents to public disclosure. New Jersey Public Defender Richard Coughlin shares that concern, saying “people will inevitably make mistakes.” Despite fears of identity theft and disclosure of names of cooperating witnesses, there were no known incidents of misuse or harm in the pilot courts, according to the report. A defense lawyer in a nonpilot court that had online access before September 2001 reported threats to a client who cooperated with the government, but “the threat could not be traced directly to online documents,” the report said. Opposition remains, however. Matawan lawyer Maria Noto, president of the Association of Criminal Defense Lawyers of New Jersey, calls public access to criminal records “outrageous,” claiming it will stigmatize those convicted of even minor crimes and interfere with their ability to move on with their lives. The rollout of the electronic-filing program — Case Management/Electronic Case Filing — in New Jersey originally was slated for this fall but now is expected in January, says Chief Judge John Bissell. Rules and procedures are being formulated, he adds. District Deputy Chief James Murphy says the system will be set up to handle civil and criminal cases. The local rules committee approved a set of policies and procedures on Sept. 16 to govern electronic filing, which will go to the judges for approval, says Murphy. Complaints will have to be filed in hard copy form as well but later documents need only be filed electronically, he says. Training of court staff in the procedures will start in November. Lawyers will also need training. The district’s e-filing registration form asks registrants to certify that they have completed hands-on training or an online tutorial. In addition to training to be provided at courthouses, court staff are giving a seminar through the Institute of Continuing Legal Education on Dec. 6 and are making themselves available to local bar and other organizations that are large enough and have suitable computer equipment. Law firms can team up for joint training sessions, says Murphy. Using the system should not be difficult for those familiar with sending e-mail and attachments, says Murphy. The Judicial Conference is made up of 26 judges — Chief Justice William Rehnquist; the chief judge of each circuit, a district judge from each circuit, the chief judge of the Court of International Trade — and the Administrative Director of the Courts. The 3rd Circuit is represented by Chief Judge Anthony Scirica and U.S. District Judge Sue Robinson of Delaware.

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