University of Connecticut OpenCommons@UConn Connecticut Law Review School of Law 2020 Justice in a Brave New World? Jean R. Sternlight Follow this and additional works at: https://opencommons.uconn.edu/law_review Recommended Citation Sternlight, Jean R., "Justice in a Brave New World?" (2020). Connecticut Law Review. 441. https://opencommons.uconn.edu/law_review/441 CONNECTICUT LAW REVIEW VOLUME 52 APRIL 2020 NUMBER 1 Article Justice in a Brave New World? JEAN R. STERNLIGHT As science fiction has become reality, we should consider the implications of our new technologies for our system of justice. In addition to DNA, we are now regularly using cameras, geo-tracking, facial recognition software, brain scans, computers, and much more to discern and record our physical and mental surroundings. Existing technology and more we cannot yet imagine will increasingly take the place of often unreliable evidence, such as that provided by eyewitnesses. Yet, we have given far too little thought as to how these advances should impact our civil and criminal dispute resolution systems. Historically, many justice systems have emphasized the importance of finding the truth. Our new forms of technology will arguably help us discover the truth, and thereby potentially enhance justice. Upon reflection, however, it is not clear that our scientific innovations will necessarily yield greater truth, much less justice. The products of our technology will inevitably be subject to human interpretation and argument, and justice has always been about far more than truth. This Article argues that we should focus on three critically important issues as we consider how to redesign our system of justice to accommodate our new technology. First, recognizing that judges and jurors will often lack the competence to interpret scientific data, we should rely more heavily on neutral scientific experts. Second, in light of the psychology of multiple interpretations, we will want to ensure that our technological evidence is interpreted by a diverse audience. Third, the greatest contribution of our powerful new technology may be that it helps us recognize that justice involves much more than finding the truth. Even assuming we could agree on what happened in the past, alternative visions of justice influence how a community will want to deal with past events, such as through punishment, compensation, reparations, apology, or in other ways. By deemphasizing the centrality of truth, we can focus more on other important aspects of justice, including examining motivations, healing community rifts, enunciating community norms, providing procedural justice, protecting human rights, and providing cost-effective access to our dispute resolution system. Focusing on this broad array 213 of concerns will encourage us to reform our litigation system in creative ways and also to rely more heavily on non-litigation approaches to justice. ARTICLE CONTENTS INTRODUCTION .................................................................................... 217 I. A FIRST TAKE—OUR NEW TECHNOLOGY WILL ENABLE TRIALS TO FULFILL THEIR PURPOSE OF UNCOVERING TRUTH ......... 218 A. TRIALS’ PURPOSE OF UNCOVERING TRUTH ................................... 218 B. NEW TECHNOLOGY CAN AID IN THE SEARCH FOR TRUTH ............. 222 II. NOT SO QUICK—OUR NEW TECHNOLOGY WILL NOT NECESSARILY BRING US TRUTH OR JUSTICE .......................... 236 A. NEW TECHNOLOGY WILL NOT BRING US INDISPUTABLE TRUTH ... 236 B. JUSTICE INVOLVES MORE THAN TRUTH ........................................ 244 III. HOW OUR NEW TECHNOLOGY CAN HELP US THINK MORE CLEARLY ABOUT WHAT WE SHOULD SEEK IN A SYSTEM OF JUSTICE ........................................................................................... 253 A. RESOLVING TECHNICAL ISSUES.................................................... 255 B. DEALING WITH MULTIPLE INTERPRETATIONS ............................... 259 C. JUSTICE BEYOND TRUTH ............................................................. 264 CONCLUSION ........................................................................................ 268 Justice in a Brave New World? JEAN R. STERNLIGHT * INTRODUCTION A man was recently charged with a 1993 murder based on DNA obtained from a napkin he discarded at a hockey game.1 As science fiction has become reality, we must consider the implications of new technology for our system of justice. In addition to DNA, we are now regularly using cameras, geo-tracking, facial recognition software, brain scans, and more to discern and record our physical and mental surroundings.2 Our phone records, financial transactions, and social media are preserved not only in our devices but also in the “cloud.”3 We are even developing the capabilities to read emotions4 and memories.5 This technology and more we cannot yet imagine will increasingly take the place of often unreliable evidence, such as eyewitness testimony.6 Yet, while these technological advances are amazing, we have given far too little thought to how these scientific developments should impact our approach to civil and criminal conflicts. Historically, many justice systems have emphasized the importance of finding the truth. Whether through trials by ordeal, oaths, or more modern trials, we have endeavored to find out who did what to whom and why. Part I summarizes this historical focus and then describes how new technology * Michael and Sonja Saltman Professor of Law and Founding Director, Saltman Center for Conflict Resolution, University of Nevada – Las Vegas Boyd School of Law. I dedicate this Article to Carrie Menkel-Meadow, whose work has greatly inspired my own. I received helpful feedback from presentations at Marquette University Law School and the AALS Dispute Resolution Section Works-in- Progress session and from Carrie Menkel-Meadow, Michael Moffitt, Lydia Nussbaum, Andrea Schneider, Judy Sternlight, and Ron Wright. I am very grateful for the exceptional work done by UNLV law librarians Youngwoo Ban and Jennifer Gross and by my research assistants: Arthur Burns, Robin Gonzalez, Haley Jaramillo, Corey Juelke, Stacy Norris, and Shannon Zahm. 1 Sarah Mervosh, DNA From Napkin Used at Hockey Game Leads to Charge in a 1993 Murder, N.Y. TIMES, Feb. 18, 2019, at A9 (describing law enforcement’s use of genealogical databases to identify suspects). Similar technology was famously used to apprehend the alleged Golden State Killer, who was charged with murdering, raping, and burglarizing victims over several decades. See infra text accompanying note 72. 2 See infra Section I.B. 3 See infra text accompanying note 61. 4 See infra text accompanying note 58. See also infra Section I.B.2 (discussing a variety of technologies used to directly and indirectly assess what people are thinking). 5 See infra text accompanying notes 110–26. 6 See, e.g., Elizabeth F. Loftus, Eyewitness Science and the Legal System, 14 ANN. REV. L. & SOC. SCI. 1, 5 (2018) (explaining that the development of DNA testing shed light on the fallibility of eyewitness testimony). 218 CONNECTICUT LAW REVIEW [Vol. 52:1 will arguably help us discover the truth, thereby potentially enhancing justice.7 Upon reflection, however, it is not clear that our scientific innovations will necessarily yield greater truth, much less justice. Part II.A explains that for technical, psychological, and philosophical reasons, new technology will not necessarily help us find truth. From a technical standpoint, mistakes will be made, and results can even be faked. Psychologically, even the most brilliant of technologies will ultimately be designed and interpreted by humans and thus be subject to human biases. Philosophically, perhaps any search for ultimate truth is doomed because no single truth exists. Part II.B argues that to the extent our new technology may help us find truth, its greater contribution, ironically, may be that it helps us recognize that justice involves much more than truth. Even assuming we could agree on what happened in the past, alternative visions of justice influence how a community will want to deal with that past, such as through punishment, compensation, reparations, apology, or in other ways. Both currently and historically, trials have never focused exclusively on truth. As well, non-adjudicatory processes such as mediation, negotiation, or community conferences have always emphasized aspects of justice other than truth. Whereas trials are generally structured to yield a single answer, other forms of dispute resolution are premised on recognition of complexity—that multiple truths can exist and that alternative solutions are possible. Finally, Part III considers how we ought to redesign our system of dispute resolution8 to accommodate our new technology and achieve greater justice. It suggests we look for processes to help us deal with three critically important issues: the inevitable fallibility of the technology, the psychology and philosophy of multiple interpretations, and the goals of dispute resolution that reach beyond merely finding the truth. By encouraging us to contemplate these and other issues, perhaps our technological innovations can help spark a rethinking of our system of justice that is even more exciting and innovative than the new technology itself. I. A FIRST TAKE—OUR NEW TECHNOLOGY WILL ENABLE TRIALS TO FULFILL THEIR PURPOSE OF UNCOVERING TRUTH A. Trials’ Purpose of Uncovering Truth In both the criminal and civil context,9 we often use trials to try to figure 7 While the privacy implications of our new technology are also