AI ETHICS
Conclusion
Generative artificial intelligence is already an increasingly integrated facet of the criminal legal system, and defenders have an ethical duty to use it to enhance their advocacy in and out of the courtroom.
The technology offers genuine benefits. Ethical and efficient AI can help overburdened defenders manage growing workloads, extract insights from mountains of digital evidence, and allow defenders to focus on the judgment-intensive work — the human skills — machines cannot perform. For defenders struggling to provide adequate representation amid chronic underfunding and excessive caseloads, AI represents a force multiplier that might help close the gap between what clients need and what overwhelmed attorneys can deliver. Defenders must acknowledge the adversarial nature of practice, too, and understand that prosecutors are already using sophisticated AI tools for both mundane research and high-risk tasks. Yet this potential comes with risk. The same tools that promise efficiency can compromise confidentiality when defenders enter client information into unsecure systems. The same tools that generate persuasive prose can fabricate citations, facts, and work product that sounds authoritative but is pure fiction (or exaggerated truth). The same tools that help defenders process discovery, draft eloquent motions or briefs, and craft courtroom exhibits, can erode the foundational skills that effective advocacy requires from defenders, especially early career defenders. And the same tools that offer convenience consume vast quantities of energy, contributing to environmental harms that NACDL has specifically committed to addressing. The risks extend beyond individual practice to systemic concerns about fairness and equal justice. Prosecutors have moved aggressively to adopt AI tools, leveraging government budgets and institutional resources to integrate technology into high-risk practices and tasks, such as charging decisions, bail recommendations, and sentence recommendations. If defenders cannot achieve comparable capabilities, the adversarial balance tips further against the accused. Indigent defendants represented by under- resourced public defenders may receive fundamentally different — and inferior — representation than wealthy defendants who can afford counsel with access to sophisticated AI tools. This two-tiered system would compound existing inequities in a criminal legal system already marked by profound disparities, and requires the type of “calibration” envisioned by Professor Simshaw for the legal profession, generally. 79
47
Parity in Practice: The Defender’s Duty to Ethically Use AI
Made with FlippingBook Online document maker