gavel data analytics

New York state's move to reform criminal discovery earlier this year was applauded by many as a step toward equalizing access to evidence. But now the question becomes, will criminal defense attorneys be able to invest in e-discovery tools to review more evidence?

In March, New York passed criminal justice reforms requiring prosecutors to exchange evidence with defense attorneys within 15 days of an arraignment, with a few exceptions. Likewise, the defense is required to disclose their own discoverable material within 30 days, though they will now be allowed to review a prosecutor's evidence after they are offered a plea deal.

While expanded requirements and deadlines were lauded, some cautioned that criminal defense attorneys may not be able to afford legal technology to help them more quickly review larger troves of electronic evidence. 

“It's one thing to say we can use technology to handle data as it's given to us, [but] having the ability to pay for that is entirely differently,” said Tom O'Connor, an electronic litigation system consultant.

“For defendants that are indigent, the e-discovery stuff can quickly become expensive,” added Matthew Esworthy, a Bowie & Jensen partner who practices civil and criminal law.

However, Esworthy noted that “there are cases that require [technology], and some cases it's a luxury you don't want to pay for.”

Indeed, while New York's new discovery requirements extend to all state criminal proceedings, not all cases are data-intensive.

“It's possible for routine criminal actions like assault or domestic violence or theft, you aren't likely dealing with a large volume of electronic evidence,” said Christine Payne, a partner at e-discovery firm Redgrave and former co-chair of Kirkland & Ellis' e-discovery committee. “There might be some video recordings or 911 calls, but that's not the large [scale e-discovery]. For larger, more complex investigations, there is definitely a possibility that criminal defense lawyers are going to be engaged in a practice more akin to civil discovery as a result of these laws.”

On the other hand, a complex case could be intensified by New York's discovery reforms, which allow defendants to access a host of electronically stored information, including written and recorded statements; tapes and electronic recordings; and any visual reproductions.

“Receiving electronic evidence can be very intimidating, especially with lawyers that haven't dealt with it before. Some of the timing requirements under this new framework are tight turnarounds in terms of processing, reviewing and digesting electronic evidence,” Payne said.

While it would seem that such reforms would encourage legal tech usage, some noted the  anxiety of mastering new software could stop some criminal defense attorneys in their tracks. 

O'Connor said lawyers generally aren't trained about tech platforms, which could lead to lower tech adoption rates. “Unfortunately, attorneys do not get much if any technology training in law school. They aren't exposed in general to technology that is out there,” he explained.

But regardless of their experience or ability with legal tech, criminal defense attorneys practicing in New York state will be held to tighter discovery deadlines for examining possibly larger volumes of data.

For criminal defense attorneys that can leverage legal tech, Payne noted early case assessment tools can provide lawyers with a quick grasp of the data they have and how it impacts their client's case.

“There are a lot of vendors on the market that offer early case review tools, which I think could come in handy in those instances,” she said. “Defense attorneys effectively need to get a quick peek of the data to figure out where they really need to dig in and review.”