Digital ecosystem of accountability

• Author: Meredith J. Duncan
• Position: Alumnae College Professor of Law and Assistant Dean of Diversity, Equity, Inclusion, and Metropolitan Programs at the University of Houston Law Center ('UHLC')
• Pages: 393-438

DIGITAL ECOSYSTEM OF ACCOUNTABILITY

Meredith J. Duncan*

ABSTRACT

Criminal defense attorneys often engage in plea negotiations on behalf of their

clients without knowledge of material, exculpatory information that the prosecu-

tion may possess, placing the defense at an unfair disadvantage. The recent pro-

liferation of electronically-stored information (“ESI”) is further exacerbating

this informational imbalance. Without proactively accounting for ESI in criminal

discovery, the informational gulf existing between the prosecution and the

defense during plea negotiations will continue to foster uninformed legal repre-

sentation, inconsistent results, and an enduring lack of public confidence in the

criminal justice system. Although scholars have promoted open-file criminal dis-

covery as a cure to narrow this informational gap, neither the literature nor

recently enacted open-file criminal discovery have sufficiently considered the im-

portance of digitizing open-file criminal discovery to fix the imbalance. This

Article argues for the nationwide implementation of digitized open-file criminal

discovery schemes as a means of correcting the current pre-plea informational

asymmetry, leading to more reliable results and improved defense lawyering.

Digitizing open-file criminal discovery will produce a digital ecosystem of

accountability benefitting both defendants and prosecutors alike.

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 394

I. INFORMATION ASYMMETRIES IN PLEA BARGAINING . . . . . . . . . . . . . . . . 395

II. INSUFFICIENCIES OF CURRENT LITERATURE AND POLICIES . . . . . . . . . . . . 400

A. Open-File Discovery Literature . . . . . . . . . . . . . . . . . . . . . . . 400

B. Criminal Discovery Shortcomings . . . . . . . . . . . . . . . . . . . . . 401

III. THE NEED FOR DIGITIZED OPEN-FILE CRIMINAL DISCOVERY. . . . . . . . . . 408

A. A Digital Ecosystem of Accountability . . . . . . . . . . . . . . . . . . 409

B. Benefits of Digitized Open-File Criminal Discovery . . . . . . . . 416

1. Redresses Brady’s Inapplicability to Plea Stage . . . . . . . . 418

2. Replaces Overly-Restrictive Criminal Discovery Systems . 420

3. Stabilizes Inequitable Access to Electronically-Stored

Information . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 422

* Alumnae College Professor of Law and Assistant Dean of Diversity, Equity, Inclusion, and Metropolitan

Programs at the University of Houston Law Center (“UHLC”). I thank the UHLC administration, the University

of Houston Law Foundation, and the staff of the UHLC Law Library, especially Christopher Dykes, for their

invaluable support. I especially thank my colleagues Dave Fagundes and David R. Dow for their thoughtful

comments on early drafts of this article and UHLC student Charisma Ricksy Nguepdo for her terrific research

assistance. © 2022, Meredith J. Duncan.

393

4. Promotes Competent and Ethical Defense Lawyering . . . . 425

5. Reduces Brady Violations . . . . . . . . . . . . . . . . . . . . . . . . 426

6. Fosters Compliance with Prosecutorial Ethical Mandates . 428

C. Potential Drawbacks to Digitized Open-File Criminal Discovery 432

1. Increased Monetary Expenses . . . . . . . . . . . . . . . . . . . . . 433

2. Increased Privacy Concerns . . . . . . . . . . . . . . . . . . . . . . 433

3. Challenges to the Defense Efficiently Manipulating ESI . . 434

4. Continued Non-Liability of Criminal Defense Counsel . . . 436

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 436

INTRODUCTION

In 2006, the state of Texas indicted George Alvarez for felony assault of a public

servant despite possessing video of the incident that would have exonerated him.

1

Without the exculpatory video evidence pre-plea, Alvarez, represented by counsel,

pleaded guilty to an eight year deferred sentence, which he ultimately served in

prison.

2

Four years into the sentence, Alvarez learned that the local police department

had the video evidence the whole time.

3

He was eventually adjudged innocent of the

crime.

4

Still, a federal appellate court ultimately reversed a jury’s award of monetary

damages in his favor because long-standing precedent provided that a criminal de-

fendant is constitutionally not entitled to Brady material prior to entry of a plea.

5

Over 95% of criminal cases are resolved pursuant to plea agreements,

6

where

pleading defendants may not receive material, exculpatory information in the pros-

ecution’s possession. The increase in electronically-stored information ( ESI )

exacerbates the information asymmetry

7

currently existing between criminal

“ ”

1. See Alvarez v. City of Brownsville, 904 F.3d 382, 387–88 (5th Cir. 2018).

2. See id. at 388.

3. See id.

4. See id.

5. The jury awarded Alvarez $2.3 million on his § 1983 claim based on violations of Brady v. Maryland, a

decision later reversed by the Court of Appeals for the Fifth Circuit. See id. at 388-89.

6. See Missouri v. Frye, 132 S. Ct. 1399, 1407 (2012) (explaining that 97% of federal comvictions and 94% of

state convictions are a result of pleas); see also Thea Johnson, What You Should Have Known Can Hurt You:

Knowledge, Access, and Brady in the Balance, 28 GEO. J. LEGAL ETHICS 1, 32 (2015) (describing that 97% of

federal cases were resolved via plea in 2010); Daniel S. McConkie, Criminal Law: Structuring Pre-Plea

Criminal Discovery, 107 J. CRIM. L. & CRIMINOLOGY 1, 17 (2017) (explaining that “nearly all convictions result

from plea bargains”).

7. Cf. George A. Akerlof, The Market for “Lemons”: Quality Uncertainty and the Market Mechanism, 84

Q. J. ECON. 488, 488–92 (1970) (examining how “information asymmetry” between buyers and sellers of market

goods affects quality of goods available); Miriam H. Baer, Timing Brady, 115 COLUM. L. REV. 1, 25 (2015)

(“[C]riminal discovery’s information asymmetry severely undermines the integrity and reliability of the plea-

bargaining process.”).

[R]emoving the wall between intelligence surveillance and law enforcement has created a trou-

bling asymmetry in the criminal justice system. The government acts expeditiously to secure those

records that it needs to secure a conviction, but it may overlook or at least not pursue digital infor-

mation that undermines the prosecution. Such duplicity is incompatible with a fair adversarial sys-

tem . . . .

394 AMERICAN CRIMINAL LAW REVIEW [Vol. 59:393

defense attorneys and the prosecution. The proliferation of ESI in the criminal jus-

tice context has been recently described as creating a veritable digital ecosystem of

accountability,

8

See Ronan Farrow, An Air Force Combat Veteran Breached the Senate, THE NEW YORKER (Jan 8, 2021),

https://www.newyorker.com/news/news-desk/an-air-force-combat-veteran-breached-the-senate (quoting John

Scott-Railton, a senior researcher with the University of Toronto Munk School Citizen Lab, describing use of

digital forensics to identify January 6th insurrectionists, including digital and interactive videos, digital

photographs, and social media information).

one which is readily accessible to prosecutors but not to defense

attorneys. This imbalance of information leads to uninformed defense lawyering,

inconsistent results, and a lack of public confidence in the criminal justice system.

This Article proceeds in three parts. Part I examines the increasing information

asymmetry at the plea-bargaining stage, particularly considering the recent

increase of ESI. Part II explores how the criminal discovery literature and recently

enacted open-file systems fail to account for the ever-expanding universe of digi-

tized information. Part III calls for the implementation of digitized open-file crimi-

nal discovery systems nationwide. Digitized open-file criminal discovery will

render the digital ecosystem of accountability equally accessible to both the prose-

cution and the defense. It will also position criminal defense attorneys to deliver

capable, well-informed legal representation, leading to more appropriate results

and increased confidence in the criminal justice system.

I. INFORMATION ASYMMETRIES IN PLEA BARGAINING

Defendants are the most vulnerable participants in the criminal justice system,

and their vulnerability necessitates that their lawyers provide competent legal rep-

resentation. Unfortunately, attorneys representing most criminal defendants prac-

tice law at an informational disadvantage because the prosecution has access to a

wealth of information that the defense does not, particularly at the plea stage.

9

This

imbalance of information leaves criminal defendants exposed to the most signifi-

cant risks the criminal justice system has to offer: erroneous or ill-considered con-

victions, disparate sentences and punishments, extreme terms of imprisonment,

and even capital punishments. Representing clients at an informational deficit neg-

atively affects criminal defense attorneys’ ability to deliver well-informed legal

representation which, in turn, increases their clients’ risks to these harmful conse-

quences. The imbalance of important information between the prosecution and

criminal defense attorneys is caused by a combination of factors, including

See also Joshua A.T. Fairfield & Erik Luna, Digital Innocence, 99 CORNELL L. REV. 981, 1043 (2014) (emphasis

added).

8.

9. See Russell M. Gold, Carissa Byrne Hessick & F. Andrew Hessick, Civilizing Criminal Settlements, 97

B.U. L. REV. 1607, 1616 (2017) (describing how the criminal justice system provides criminal defendants with

limited access to information, impairing their ability to make well informed decisions during plea negotiations);

see also Miriam H. Baer supra note 7, Timing Brady, 115 COLUM. L. REV. 1, 24–25 (2015) (explaining that

criminal defendants have access to less information than the prosecution, resulting in an “information

asymmetry” during the plea stage).

2022] DIGITAL ECOSYSTEM OF ACCOUNTABILITY 395