As one of the measures to prevent the spread of the new coronavirus, courts in major parts of the world are delaying trials and temporarily closing doors. While the move is reasonable in the face of the pandemic, the process could leave some cases in limbo for weeks, if not months. In the criminal context, this could be a huge barrier to access to justice for victims and in securing the rights of the accused. The Chief Justices of various judicial systems have issued guidance to trial courts seeking emergency orders to adjust or suspend court operations in light of the pandemic. In addition to these measures, new AI-based systems may prove helpful during these times and should, where available, be used to secure access to justice.
An artificial intelligence (AI) driven judicial system would make sure that nothing stalls during the pandemic. In the most ambitious project to date, the Estonian Ministry of Justice has asked Velsberg and his team to design a “robot judge” that could adjudicate small claims disputes. Officials hope the system can clear a backlog of cases for judges and court clerks. The problem, however, is that AI is only as good as the programming that goes into it. Sentencing algorithms in the US, for example, have faced criticism as biased against black people. It is thus important that the courts ensure that the AI systems used do not have internal biases.
Other forms of technology have been used to keep the justice system in operation during this crisis. In California, the Supreme Court of California has suspended in-person oral arguments — instead, lawyers will appear remotely, through video, telephone or other electronic means. In New York, the justice system turned to video arraignments and the state is considering the release of older Rikers prisoners. In the United Kingdom (UK), the Justice Ministry gave directives limiting court hearings to the most urgent and encouraged the use of technology.
In comparison, the judiciaries in some developing jurisdictions are struggling to grapple with the pandemic. In Kenya, for example, there is a risk that the pandemic may lead to a halt of the criminal justice system. Thus far, the Kenyan Chief Justice David Maraga told a press briefing that court activities would be reduced for two weeks to allow further consultations on the matter and the design of appropriate response measures. The use of technology and flexible work shifts could ensure the maintenance of access to justice.
Unfortunately, the resources required in setting up AI and other technology to support the judicial system may not be immediately available for some developing countries. The processing of judicial decisions and data by artificial intelligence requires investment in supporting tools not just for the system but for the legal professionals as well as the litigants – some jurisdictions will not be able to afford this infrastructure. Nevertheless, in the face of COVID-19, jurisdictions should be working to develop their capacity in this regard. Taking advantage of cloud computing and machine learning can help build technology-friendly judicial systems that can help the judiciary resolve cases.
Cases involving human rights and welfare, deprivation of liberty, domestic violence and public safety are key and where possible should not grind to a stop. It is important for the justice systems to strongly consider the advancement and use of AI and other technology in solving the issues that come with the backlog as well as create an efficient and fast system – technology, including AI systems and the human judge can work alongside one another to achieve these purposes.