Public Records Aren’t Public: Systemic Barriers to Measuring Court Functioning & Equity

Albrecht, Kat,Filip, Kaitlyn | April 3, 2023

In a new era of computational legal scholarship, computational tools exist with the capacity to quickly and efficiently reveal hidden inequalities in the criminal legal system. Technically, laws exist that legally entitle the public to the requisite court records. However, the opaque bureaucracy of courts prevents us from connecting the public to documents they have a right to access. We exemplify this legal ethical problem by investigating areas of law where codified protections against inequalities exist and where computational tools could help us understand if those protections are being enforced. In general, the computational requirements of such projects needn’t be complex, making them even more attractive as solutions for auditing legal system processes. Using the backdrop of a national audit of public records policies to retrieve criminal jury trial transcripts, we establish the impossibility of securing the public records needed to quantify the illegal use of racially motivated peremptory strikes. We argue that the lack of opacity or availability of these policies serve as a bottleneck to the relatively simple computational process of quantifying previously unknown language and events in criminal jury trials. This Article considers the ethical implications of the lack of access to records that are legally public and considers how this lack of access to records becomes an access to justice problem.