The expansion of technological capability has changed the types of data routinely collected about citizens, which has potential utility in criminal justice proceedings. But these capabilities also have the potential to infringe on individuals' constitutional rights, especially to due process. In this report, RAND researchers, with the help of an advisory panel, craft a research agenda to help prepare the U.S. legal system to address these issues.

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Future-Proofing Justice

Building a Research Agenda to Address the Effects of Technological Change on the Protection of Constitutional Rights

by Brian A. Jackson, Duren Banks, Dulani Woods, Justin C. Dawson

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Appendix

Panel Description, Technical Methods, and Preworkshop Questionnaire

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نظام قضائي مستعد للتطورات المستقبلية: إعداد أجندة بحثية لمعالجة آثار التغيرات التقنية على حماية الحقوق الدستورية

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Research Question

  1. What are the research and other needs that either address concerns or take advantage of opportunities related to emerging technologies and the protection of individuals' constitutional rights in the criminal justice system?

New technologies have changed the types of data that are routinely collected about citizens on a daily basis. For example, smart devices collect location and communication data, and fitness trackers and medical devices capture physiological and other data. As technology changes, new portable and connected devices have the potential to gather even more information. Such data have great potential utility in criminal justice proceedings, and they are already being used in case preparations, plea negotiations, and trials. But the broad expansion of technological capability also has the potential to stress approaches for ensuring that individuals' constitutional rights are protected through legal processes. In an effort to consider those implications, we convened a panel of criminal justice practitioners, legal scholars, and individuals from the civil liberties community to identify research and other needs to prepare the U.S. legal system both for technologies we are seeing today and for technologies we are likely to see in the future. Through structured brainstorming, the panel explored a wide range of potential issues regarding these technologies, from evidentiary and procedural concerns to questions about the technologies' accuracy and efficient use. Via a Delphi-based prioritization of the results, the panel crafted a research agenda — including best practice and training development, evaluation, and fundamental research efforts — to provide the criminal justice community with the knowledge and capabilities needed to address these important and complex technological questions going forward.

Key Findings

Members of the Technology and Due Process Panel Identified Needs That Fell into Five Key Themes

  • Are You Really Sure? Issues of Data and Analytic Quality for Just Decisions
  • My Technology, Myself: A Blurring Line Between Technology and the Person?
  • Data, Data Everywhere: Mobile Access to Information, Modern Data (Over)Sharing, and the Third-Party Doctrine
  • Smart (Enough) Justice: Building Justice System Expertise for Complex Technical Concerns
  • Virtual Reality, Only Virtually Just? Understanding Whether Virtual Presence, Simulation, and Immersive Presentation Advance or Hinder Justice

Emerging Technologies Pose a Wide Range of Issues for Individuals' Constitutional Rights, Especially to Due Process, in the Criminal Justice System

  • The emerging technologies considered by the panel included courtroom technologies, body-integrated technologies, carried devices, personal computing devices, home-integrated and household technologies, vehicle-integrated technologies, and the societal technology ecosystem.
  • The panel's research agenda prioritized needs that fell into three categories: best practice and training development, addressing such issues as criminal justice data quality and its implications for individuals' rights; evaluation work to better understand how analytic tools (such as risk assessment instruments) perform; and fundamental research on such topics as how the exploding volume of electronic data could affect the protection of rights.
  • Among the issues raised by the panel, the need to educate participants in the criminal justice system was most prominent. Many needs focused on developing best practices for assessments of criminal justice data quality, data retention, disclosure of collected data, public examination and correction of criminal justice data, use of telepresence, and model laws and policies for addressing social media use by criminal justice participants.

Recommendations

  • This effort sought to lay out not just near-term needs for addressing technologies available today but also longer-term, more-fundamental research topics to provide the justice system better ways to address the challenges posed by the likely rapid shifts in information, sensing, and other technologies that will continue to occur in the future.
  • Issues related to the panel's identified needs — many of which touch on extremely forward-looking technology concerns — are perceived as being very risky, but that might be a rationale to pursue research on these issues rather than a justification to shy away from doing so. Beyond simply answering the specific issues raised in each need individually, such research could contribute to the judicial system making better decisions regarding these technologies and their use.

In this report, RAND researchers, with the help of an advisory panel, craft a research agenda to prepare the U.S. legal system to address the effects of emerging technologies on individuals' constitutional rights, especially to due process.

This report is part of the RAND Corporation Research report series. RAND reports present research findings and objective analysis that address the challenges facing the public and private sectors. All RAND reports undergo rigorous peer review to ensure high standards for research quality and objectivity.

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