AI ETHICS C. The Defense Lawyer’s Duty to Use AI
1.
Adversarial Reality
The criminal legal system operates on adversarial principles. Prosecutors and defense lawyers each advocate zealously for their respective positions, and the truth-seeking function depends on both sides presenting their strongest cases. When one side gains significant technological advantages, this balance shifts. The Vanderbilt Project on Prosecution Policy documents current prosecutorial uses including probabilistic genotyping for DNA analysis, extraction and analysis of data from personal electronic devices, enhancement of digital evidence, evidence management and organization, automated transcription and translation, AI-assisted redactions, and pattern identification across cases. 48 Defense lawyers who are unable — due to a lack of resources or support or use restrictions from their firm or office — or unwilling to engage with AI risk falling behind. If prosecutors can delegate workloads more efficiently through AI-assisted platforms, they may better manage staff and deadlines. If prosecutors can process a cell phone extraction containing thousands of text messages in hours while defenders take weeks to review the same material manually, critical evidence may go unnoticed. And if prosecutors use AI to identify connections between cases and defendants while defenders lack similar capabilities, the informational asymmetry compounds existing resource disparities. This does not mean defenders should develop or invest in a new AI solution without critically reviewing its capabilities and security. But it does mean defenders have an obligation — rooted in their duty of competence under Model Rule 1.1 and their duty of diligence under Model Rule 1.3 — to understand what AI tools exist, how prosecutors use them, when to object, and whether comparable tools might benefit their own clients. The ABA’s comment to Model Rule 1.3 specifically states that lawyers must act with zeal in advocacy upon the client’s behalf (emphasis added). Of course, the ability to mount a zealous defense is contingent upon having access to the same or similar tools that prosecutors access.
2.
Ethical Use and Evidence
In 2023, the Advisory Committee on Evidence Rules, for example, amended Federal Rule of Evidence 702 to require that “expert testimony may not be admitted unless the proponent demonstrates to the court that it is more likely than not that the proffered testimony meets the admissibility requirements set forth in the rule.” 49 Likewise, the Advisory Committee has proposed a new Federal Rule of Evidence 707 to regulate the admissibility of machine-generated evidence introduced without expert testimony. 50
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Parity in Practice: The Defender’s Duty to Ethically Use AI
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