AI ETHICS PART I: AI Overview
Part I provides an overview of generative artificial intelligence and its emerging role in criminal defense practice. It begins by explaining, at a high level, what generative AI is, how certain systems (e.g., LLMs) work, and why their design and limitations matter in practice. The discussion then turns to the ways defenders are already using generative AI tools in practice, including legal research, drafting, case organization, discovery review, and client communication, while also noting the risks of inaccuracy, bias, confidentiality breaches, and overreliance. Finally, Part I affirms that defenders have an ethical duty to understand and use AI. Together, these sections establish the technological, practical, and ethical foundation necessary to assess how AI should be responsibly integrated into criminal defense practice. A. What Is Generative AI?
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Definition and Core Functionality
Artificial intelligence encompasses a rather large umbrella of technologies that in some way mimic human intelligence. The National Institute of Standards and Technology defines AI as systems that can “make predictions, recommendations or decisions influencing real or virtual environments” for a given set of human-defined objectives. 20 These systems work with machine learning 21 and data analytics 22 to form conclusions using real-time data. However, to make intelligent decisions, computer programmers must first build intelligent algorithms. 23 Generative AI refers to a specific subset of artificial intelligence. These systems use machine learning models trained on vast datasets to create new content (e.g., text, images, code) based on patterns identified in that training data. Large language models (LLMs), such as those powering ChatGPT, Claude, and similar tools, analyze enormous amounts of text and generate responses to user prompts based on the patterns they have learned. As OpenAI CEO Sam Altman explained to Congress in 2023, these models “generate responses by predicting the next likely word in response to the user’s request, and then continuing to predict each subsequent word after that.” 24 The capabilities of these LLMs have
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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