Big Data and Due Process

11 Pages Posted: 17 Aug 2014 Last revised: 21 Aug 2014

Brandon L. Garrett

University of Virginia - School of Law

Date Written: August 15, 2014


Today, electronic footprints may follow us wherever we go. Electronic traces, left through a smartphone or other device, can be tracked to the scene of a crime, or they can place a person far from a crime scene. By the same token, individuals may be falsely implicated due to errors in large government or commercial databases, and evidence of innocence may linger in such archives without ever coming to light. Professors Joshua Fairfield and Erik Luna and have done an important service by carefully introducing the problem of “digital innocence” and marking out areas in need of clear thinking and policy. In this online response to their wonderful piece, I discuss four additional problems at the intersection of big data and due process rights: (1) the need for developed electronic discovery rules in criminal cases; (2) the need to reconsider the meaning of Brady v. Maryland and the due process obligations of prosecutors and government agencies in the context of government data; (3) the parallel need to reconsider standards for effective assistance of defense counsel; and (4) the need for broader and better-adapted postconviction electronic discovery and remedies.

Suggested Citation

Garrett, Brandon L., Big Data and Due Process (August 15, 2014). Cornell Law Review Online, Vol. 99, 2014; Virginia Public Law and Legal Theory Research Paper No. 2014-45. Available at SSRN:

Brandon L. Garrett (Contact Author)

University of Virginia - School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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