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by the HSBA Committee on Judicial Administration
ACKNOWLEDGMENTS
The Hawai i State Bar Association's Judicial Administration Committee was established for the purpose of maintaining a close relationship with the Judiciary on matters of mutual concern to the bench and bar. Since 2012, the Bench-Bar Conferences and in alternate years, the Criminal Law Forums, Civil Law Forums, and Family Law Forums have been positive and constructive because of the enthusiasm of Hawai i Supreme Court Chief Justice Mark E. Recktenwald, who has supported the constructive endeavors of the committee. The committee appreciates his dedication in making these efforts a priority.
The committee further acknowledges the Judiciary's Curt Shibata, Dawn Nagatani, and Lisa Lum for assisting with the logistics and use of Room 101 in the Supreme Court Building. The committee is also grateful to the moderators and panelists: Jenny Silbiger, Justice Vladimir Devens, Judge Annalisa Bernard Lee, Judge Jill Hasegawa, Judge Kenneth Shimozono, Rebecca Like, Florence Nakakuni, Andrew Son, Taryn Tomasa, Mark Yuen, William Bento, Daniel Hugo, Tricia Nakamatsu, Mark Tom, Sara Haley, Benjamin Lowenthal, and Charles Murray. A special note of appreciation is extended to the reporters: Jessica Domingo and Kirsha Durante.
WELCOME
On Friday, September 27, 2024, Associate Justice Simeon R. Acoba (ret.), co-chair of the Judicial Administration Committee ("JAC") of the Hawai i State Bar Association ("HSBA"), welcomed all participants to the 2024 Criminal Law Forum and recognized the presence of practitioners and judges from all circuits. Justice Acoba highlighted the public's focus on criminal cases and the resurgence of reliance on state constitutions and democratic principles. He emphasized that the public's familiarity with the rule of law has brought heightened expectations for competent, ethical, and responsible conduct of lawyers and judges. He expressed hope that the Forum would enhance the knowledge and understanding of lawyers and judges on current issues ultimately strengthening the public's confidence in the rule of law. Justice Acoba introduced and thanked Chief Justice Mark E. Recktenwald for his support and encouragement of the Bench-Bar Conferences and Law Forums over the past eleven years which has made it possible for lawyers, judges and administrative officers to participate in these programs and facilitate advancements in the judicial process.
Chief Justice Recktenwald welcomed all participants and thanked the JAC for coordinating these events that provide feedback on improving judicial processes and identifying initiatives to better serve the public. He recognized that previous JAC events have helped advance the administration of justice and acknowledged previous Forums as the catalyst for major initiatives regarding pretrial reform and mental health issues in the criminal justice system. Chief Justice Recktenwald noted that this year's agenda included a presentation on Artificial Intelligence ("AI") and emphasized the importance of identifying AI's possible applications, pitfalls and impact on the courts. To address these emerging issues, the Judiciary established an AI committee to identify and understand the challenges and opportunities AI presents for the legal system.
Chief Justice Recktenwald highlighted recent legislative measures beginning with the creation of the Penal Code Review Committee which will undertake a comprehensive review of the criminal code and recommend proposed changes. He also noted the establishment of the Clean State Expungement Task Force tasked with implementing state-initiated expungement procedures to reduce barriers to expungements, ensure accuracy of records and address privacy concerns. Finally, Chief Justice Recktenwald shared that the Judiciary continues to advocate for an increase in the compensation rate for court-appointed counsel from $90 to $150 per hour. He emphasized that the current rate is too low and the effects on the criminal system are materializing as it
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is increasingly difficult to secure court-appointed counsel especially in more serious cases. The Judiciary will reintroduce a bill in the next legislative session to address this issue. Chief Justice Recktenwald expressed hope that the Forum participants will support the measure.
ARITIFICAL INTELLIGENCE IN CRIMINAL PRACTICE
An overview of Artificial Intelligence ("AI") including demonstrations, ethical implications, and practical guidance and policies.
Jenny Silbiger, the Hawai'i Supreme Court Law Library, State Law Librarian, provided an overview of generative AI, a category of intelligence that creates images, text and videos by analyzing existing data. Large language models ("LLMs") of generative AI such as ChatGPT, Copilot and Claude AI, operate by predicting the most probable word sequences based on statistical patterns. LLMs are valuable for language text translation, summarizing large amounts of text, rewriting text, and drafting initial versions of text. However, generative AI's ability to search for specific information and provide accurate results is limited. Silbiger noted that the use of commercial AI tools has dramatically increased as evidenced by the reported two billion users of ChatGPT in a single month in 2022. Silbiger reviewed several commercial AI models designed for specific tasks such as Fireflies (transcription AI) and Zoom's AI summary tool (provides transcriptions and summaries of meetings). Silbiger further discussed the recent expansion of legal AI tools, highlighting Westlaw Precision, Co-Counsel, Lexis+AI, Paxton AI, and Vlex/Vincent, which are specifically designed for legal research and analysis.
The growth of AI in the legal practice raises significant ethical considerations and implications. First, the cost of AI may increase the existing digital divide favoring those who can afford these tools. Second, there is a possibility of systemic bias as AI learns and generates content from existing information. Third, there is a risk that AI may replace legal staff positions in the future. Fourth, how AI gathers data (training data) raises concerns about the accuracy and proprietorship of the generated content. Silbiger noted that sources and citations are often omitted creating potential copyright infringement issues. She referenced a pending lawsuit filed by the New York Times against ChatGPT's parent company. Fifth, there are privacy and security concerns as there is uncertainty if an individual's personal information is being used to train AI models. Sixth, the use of AI for certain client work can be limited by a retainer agreement or contract and often large corporations will prohibit the use of generative AI. Finally, Silbiger warned about AI-generated errors, known as "hallucinations," which occur when AI produces false or misleading information and results. Attorneys in other jurisdictions have been sanctioned for relying on and using AI generated legal research which was later revealed to be inaccurate.
Next, Silbiger demonstrated a few of the commercial and legal AI tools and discussed their utility and shortcomings. Notable demonstrations included a results comparison between Gemini and CoPilot when queried for information on what to do if a person was charged with assault in Hawai'i. Gemini gave a disclaimer with its response stating it was not an attorney and could not provide legal advice. Gemini also did not provide links to its relevant sources of information. CoPilot provided a list of things to do from a Hawai'i attorney and gave citations for its sources. Silbiger highlighted AI's limitations by asking Gemini, ChatGPT and CoPilot to explain the use of deadly force in self-defense and purposely inputted an incorrect statute section. CoPilot was the only AI tool to correct the statute section in its response. Silbiger next asked ChatGPT for case law on the successful use of deadly force in manslaughter or murder cases. ChatGPT provided names of real cases, but summaries of the cases were factually inaccurate. Accordingly, it was cautioned that ChatGPT should not be relied upon for case law research.
Paxton, a legal generative AI tool, was asked a similar question about case law related to the use of deadly force and self-defense. Paxton provided a list of cases, summaries, and links to sources and case citations. Silbiger noted that attorneys can verify the citations on traditional legal research platforms, such as Westlaw or Lexis. Silbiger also demonstrated Paxton's ability to review an uploaded complaint and provide a list and summary of legal defenses. Paxton can also draft outlines and legal pleading templates such as a motion to suppress.
Silbiger discussed the Judiciary's experimental use of Fireflies to gather
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information from court proceedings. Fireflies can transcribe video proceedings and provide an overview, party names, and actions items. She cautioned that while Fireflies is a valuable note taking tool, its results require independent verification.
Legal AI tools differ from commercial AI tools because they have an additional component called Retrieval Augmented Generation ("RAG"), which adds a specific knowledge base such as existing case law. Prompts cycle through that knowledge base and outputs information. Although RAG can assist with legal research, hallucinations are still possible and critical evaluation skills are necessary when using generative AI.
Silbiger reviewed different measures enacted in response to the rapid growth of AI. The European Parliament recently passed the EU AI Act, a landmark regulatory framework for AI oversight. The National Center for State Courts is currently evaluating AI policies and provides updated guidance and resources. The federal courts have AI rules, and federal agencies have designated AI officers tasked with evaluating risks and developments of AI...
