Break-out 3: To Defer or Not to Defer: Evolving Standards of Review in the Digital Age

Session Description:

As appellate courts face an increased influx of video and audio evidence as part of the trial record and can now review such evidence “firsthand,” should reviewing courts review digital evidence de novo, or should they continue to accord traditional deference to the triers of fact? This session will discuss the evolving jurisprudence on the scope of review of digital evidence on appeal. Participants will explore the traditional standards of review and the implications of technological advancements on deference to trial courts. Key discussion points will include whether appellate courts should approach audiovisual evidence differently and, if so, what factors may affect the scope of review.

Learning Objectives:

1. Participants will be able to articulate the traditional standards of review in appellate courts and how these standards are being challenged by the increasing presence of digital evidence, including video and audio recordings.
2. Participants will assess the implications of reviewing digital evidence “firsthand,” including the pros and cons of applying de novo review versus maintaining deference to trial courts, and identify key factors that may influence appellate review processes.

Hon. Jack M. Sabatino, Presiding Judge of the Appellate Division, Superior Court of New Jersey

Hon. Jack M. Sabatino is a Presiding Judge of the Appellate Division of the Superior Court of New Jersey, where he has served since 2005.  From September 2022 through July 2023 he served in a temporary assignment on the Supreme Court of New Jersey to fill a vacancy for that Court Term. He was a trial judge for five years, where he presided over a hundred jury trials in the Civil Part and also served in the Family Part. Before his judicial appointment in 2001, he was an Associate Dean at Rutgers Law School in Camden.  At Rutgers, he taught Evidence and other courses for twenty-three years, and he has taught undergraduate courses at Rutgers’ Eagleton Institute of Politics and Princeton University’s School of Public and International Affairs.  His career includes private practice in litigation, service as an Assistant State Attorney General and Director of the Division of Law, and full-time law teaching. The judge has published numerous law review articles. He chaired the Supreme Court Committee on Civil Practice and also serves as Vice Chair of the Supreme Court Committee on Evidence.  He is a Fellow of the American Bar Foundation and a Member of the American Law Institute. He is a summa cum laude graduate of Yale College, a cum laude graduate of Harvard Law School, and has an LL.M. degree from Duke Law School as a Master of Judicial Studies. 

Hon. Ramon Paul L. Hernando, Associate Justice, Supreme Court of the Philippines

The Honorable Ramon Paul L. Hernando is the third most senior Associate Justice in the 15-member Supreme Court of the Philippines. He currently sits as Working Chairperson of the Court’s 1st Division. Prior to his stint in the Philippine Supreme Court, he was an Associate Justice in the Court of Appeals of the Philippines from 2010 to 2018, and Presiding Judge in the Regional Trial Court of Quezon City, Philippines from 2006 to 2010. He was also at one time a State Prosecutor in the Department of Justice of the Philippines from 1998 to 2003.

In the course of his 34 years of service in the public sector, Justice Hernando was actively engaged in the Academe as a professor of law and law author. He taught subjects in Civil Law, Commercial Law and Remedial Law for more than 25 years in various law schools in the Philippines. He served as a Bar Examiner in Commercial Law in the Philippine Bar Examinations in 2009, 2011 and 2016, and as National Bar Chairperson in the 2023 Philippine Bar Examinations.

Justice Hernando holds degrees in Bachelor of Arts in Literature from the University of Sto. Tomas in Manila and Juris Doctor from San Beda University, also in Manila. He was conferred the degree of Doctor of Laws Honoris Causa by San Beda College-Alabang, Manila in 2023. In 2024, he completed the course on Executive Leadership from the Harvard Kennedy School of Government.

Mary D. Fan, University of Washington School of Law

Professor Mary D. Fan holds the Jack R. MacDonald Endowed Chair at the University of Washington School of Law where she specializes in criminal law and procedure, evidence, information privacy, and crimmigration.  She is the author of numerous articles in leading law reviews and a book Camera Power: Proof, Policing, Privacy, and Audiovisual Big Data, published by Cambridge University Press. Her research and teaching are informed by her experiences as a federal prosecutor in the Southern District of California and as an associate legal officer at a United Nations criminal tribunal. Her scholarship has been cited by judges, including U.S. Supreme Court Justice Sonia Sotomayor, and in major media venues.

Among Professor Fan’s most cherished honors is that the student body has three times voted to award her Professor of the Year. She also has been nominated for the university-wide Distinguished Teaching Award. She also received the Dean’s Medal for excellence in teaching, scholarship and service twice and also received the Washington Law Review’s Richard O. Kummert Outstanding Contribution Award.

Professor Fan was the Herman Phleger Visiting Professor at Stanford Law School in winter 2022, where she taught first-year criminal law. She was a Visiting Scientist at the Harvard School of Public Health in 2017-18. Professor Fan is an elected member of the American Law Institute (ALI) and an elected Life Fellow of the American Bar Association (ABA). She also serves on the Board of Directors for the American Civil Liberties Union (ACLU)-Washington.

Trained in epidemiology and anthropology as well as law, Professor Fan collaborates on interdisciplinary violence prevention research as a core faculty member at Harborview Medical Center’s Injury Prevention & Research Center. She also is an affiliate faculty member at the Center for an Informed Public, an interdisciplinary collaboration on the integrity of information at the University of Washington.

Mary Fan clerked for the Hon. John T. Noonan, Jr. of the U.S. Court of Appeals for the Ninth Circuit and for Judge O-Gon Kwon at the first war crimes tribunal since the World War II era. She received her J.D. from Yale Law School and her M.Phil. from the University of Cambridge, where she was a Gates Cambridge Scholar. At Yale, she was a Notes Editor for the Yale Law Journal, a Managing Editor for the Yale Journal of International Law, and a Coker Teaching Fellow. She was awarded the Jewell Prize and the Nathan Burkan Prize for her publications.

Hon. Samuel A. Thumma, Chief Judge, Arizona Court of Appeals (Moderator)

Sam has served on the Arizona Court of Appeals, Division One, since 2012, serving as Chief Judge for two years ending in 2019, and Vice Chief Judge for two years before that. Before being appointed to the Court of Appeals, Sam served as a Judge on the Arizona Superior Court, Maricopa County, for nearly five years, presiding over criminal and juvenile matters (including nearly 250 trials) and serving as an elected member of the Judicial Executive Committee.

Nationally, Sam has been a Uniform Law Commissioner from Arizona since 2012. Currently, he serves as secretary of the ULC and on the ULC Executive Committee; chairs the Drafting Committee on Updating the Uniform Determination of Death Act and serves as a member of the Committee to Monitor Developments in Civil Litigation and Dispute Resolution. Sam has served on various Study, Drafting and other ULC Committees, including the Scope and Program Committee. He has been a member of the American Law Institute since 2003 and serves as an Adviser to the Restatement of the Law (Third) of Torts: Remedies. In the American Bar Association, Sam serves as a Presidential appointee to the Advisory Council of the ABA Task Force on Law and Artificial Intelligence and the Standing Committee on Lawyer Referral and Information Services (2023-present), having previously served as a Presidential appointee to the Standing Committee on Ethics and Professional Responsibility Judges Advisory Committee. In 2022 and 2019, Sam served on ABA Section of Legal Education and Admissions to the Bar Site Evaluation Teams addressing law school accreditation. He has served as Chair of the American Bar Association’s Judicial Division Appellate Judges Conference and the Appellate Judges Education Institute, Inc., Board of Directors, as well as Judicial Division Liaison to the ABA Section of Litigation. Sam is a member of the National Judicial College Board of Trustees, serving on the Finance and Academic Committees. He has served as faculty for National Judicial College programs for more than five years, including on ethics, writing, evidence and judicial decision making. He is a member of the Joint Technology Committee, appointed by the National Center for State Courts and a member of the Editorial Board for Judicature.

In Arizona, Sam chairs the Arizona Commission on Access to Justice; co-chairs the Advisory Committee on Evidence Retention and is a member of the Arizona Supreme Court’s Committee on Juvenile Courts. Sam has chaired various Committees, Commissions and Task Forces for the Arizona Supreme Court and the State Bar of Arizona, including serving as co-editor of the Arizona Appellate Handbook for many years. He also chaired the Task Force on Court Management of Digital Evidence and the Task Force to Supplement Keeping of the Record by Electronic Means. In 2023, he received the James A. Walsh Outstanding Jurist Award from the State Bar of Arizona and, in 2021, he was named the Judge of the Year by the Arizona Supreme Court.

Sam co-teaches Evidence at Arizona State University College of Law, having previously co-taught evidence to all new Arizona judges for many years. He has taught remedies at the University of Arizona and Arizona State University Colleges of Law and has judged moot court appellate advocacy competitions at various law schools. Sam is a frequent speaker, having presented at more than 500 seminars internationally, nationally and in Arizona. He also is a frequent author, having published 25 law review articles and book chapters and nearly 70 other law-related articles. Before joining the bench, Sam was an AV peer review rated lawyer and a partner at Perkins Coie Brown & Bain, P.A., in Phoenix, and an associate at Arnold & Porter in Washington, D.C. He served as a law clerk for Arizona Supreme Court Chief Justice Stanley G. Feldman and Judge David R. Hansen, United States District Court for the Northern District of Iowa. Sam received a Master of Laws from Duke University School of Law in 2020; graduated Order of the Coif from the University of Iowa College of Law in 1988, where he was a Note & Comment Editor on the Iowa Law Review, and graduated from Iowa State University in 1984, where he was a Harry S. Truman Memorial Scholar.