Volume 59

Digital Ecosystem of Accountability

by Meredith J. Duncan

Criminal defense attorneys often engage in plea negotiations on behalf of their clients without knowledge of material, exculpatory information that the prosecution may possess, placing the defense at an unfair disadvantage. The recent proliferation 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 representation, inconsistent results, and an enduring lack of public confidence in the criminal justice system. Although scholars have promoted open-file criminal discovery as a cure to narrow this informational gap, neither the literature nor recently enacted open-file criminal discovery have sufficiently considered the importance 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. 

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