Databases, E-Discovery and Criminal Law

43 Pages Posted: 23 Mar 2011 Last revised: 10 Oct 2011

See all articles by Ken Strutin

Ken Strutin

Government of the State of New York - New York State Defenders Association (NYSDA)

Date Written: 2009


The enduring value of the Constitution is the fundamental approach to human rights transcending time and technology. The modern complexity and variety of electronically stored information was unknown in the eighteenth century, but the elemental due process concepts forged then can be applied now. At some point, the accumulation of information surpassed the boundaries of living witnesses and paper records. The advent of computers and databases ushered in an entirely new order, giving rise to massive libraries of factual details and powerful investigative tools. But electronically collected information sources are a double-edged sword. Their accuracy and reliability are critical issues in the hands of prosecutors and their accessibility a hard-won necessity in preparing a defense.

This article examines the use of computer databases and electronic evidence from both standpoints. With limited guidance from federal and state criminal discovery rules, the courts have had to rely on constitutional principles and analogies to civil procedure when faced with database and electronic document discovery requests. A tension exists between the government's proprietary interest in preserving the sanctity of its databases and the right of the defense to assail the accuracy of the databases' output or to use them as investigative tools. As the gold standards of forensic science have come to be questioned, so too the inviolability of government databases must be rethought. And the defense's right to prepare its case and receive a fair trial makes it necessary to use database knowledge comparable to the prosecution. Much of this information is generated solely by the government or its experts. The civilian alternatives are prohibitively expensive, inadequate, or non-existent. This review will highlight the problems created by disparities in resources and the role of constitutional and procedural remedies in the future development of criminal electronic discovery.

The discussion is divided into several areas, beginning with an examination of the benefits of database discovery in criminal practice under Part I. Part II is an analysis of the small body of criminal electronic discovery cases involving databases and the rules that have been applied over the years. Parts III and IV analyze the constitutional foundations for defense access to government database tools under due process, compulsory process and the right to confrontation. Applications of these theories are illustrated through developments in DNA database discovery in Part V, which highlights challenges to the quality of data and the right to access DNA databanks for defense investigation. The issues that arise in challenging evidence derived from databases, particularly data relied on by experts, are discussed in Part VI. The ongoing problem of achieving defense parity with prosecution resources and the constitutional grounds for overcoming objections to disclosure or access to database information is considered in Part VII. Finally, the conclusion, Part VIII, considers the enormity of the task facing advocates as the criminal justice system, and society at large, come to terms with this next wave in the Information Revolution.

Suggested Citation

Strutin, Ken, Databases, E-Discovery and Criminal Law (2009). Richmond Journal of Law and Technology, Vol. 15, No. 3, p. 6, 2009, Available at SSRN:

Ken Strutin (Contact Author)

Government of the State of New York - New York State Defenders Association (NYSDA) ( email )

194 Washington Avenue
Albany, NY 12210
United States


Do you have negative results from your research you’d like to share?

Paper statistics

Abstract Views
PlumX Metrics