In previous columns, I have noted that there is an implied ethical responsibility for judges to be current in technological change to the extent that it is inherently a part of the skills necessary to perform the responsibilities of their office. While those previous columns addressed changes in computer document transmittal and storage, security concerns, and the vague universe of internet research, our focus in this issue is largely the new language that technology has enabled and that is used everywhere by almost everyone.
January 24, 2024 Judicial Ethics
Judges May Have a Duty to Maintain Literacy in “Tech Talk”
By Marla N. Greenstein
Judges will be tasked to be able to spot documents that were created by “generative AI” whether by law clerks, lawyers, or witnesses in trials. So too, judges may be faced with interpreting text messages between divorcing spouses that consist largely of various cartoon-like faces, symbols, or even fruits and vegetables. Justice John G. Browning’s article is a primer alerting judges of the depth of this new pictographic language.
While judges have long been aware of when there is a need to bring in a language interpreter for non-English-speaking litigants, judges may now need interpretive assistance to understand documents presented to them in court that are part of this newly evolving “tech talk.” There may be a need to create on-the-record “translations” of the pictograph response to an electronic communication. So too, there may be differing interpretations of a meme or other electronic image. There may be a need to consult an online emoji dictionary where the parties don’t agree on the meaning of the image. And judges may be faced with determining the credibility of an assertion that the sender did not know the meaning of what they sent. There are also interesting issues surrounding the admissibility of emoji evidence (depending on the emoji and the context, it could be hearsay evidence or constitute one of the hearsay exceptions).
Every judge knows that a judge has the fundamental ethical duty to perform judicial duties competently (ABA Model Rule of Judicial Conduct 2.5). Competence has traditionally been understood to mean competence in the law; however, since at least the 2007 Code, competence means much more. Judicial duties do not entail the law without the facts. Justice requires fairness in the application of law to the facts of the underlying matter. Where the factual record now includes memes, emojis, and other culturally evolving symbols of communication, judges will be required to interpret them competently. Recognizing that this takes time, attention, and some assistance, Comment 2 to Rule 2.5 of the Model Code notes that a judge should seek expertise and resources to discharge all adjudicative duties. The articles in this issue provide the basic framework to seek out those resources and develop a basic level of expertise.
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