Should Robots Prosecute and Defend?

19 Pages Posted: 28 Jan 2019 Last revised: 6 Aug 2019

See all articles by Stephen E. Henderson

Stephen E. Henderson

University of Oklahoma - College of Law

Date Written: January 12, 2019


Even when we achieve the ‘holy grail’ of artificial intelligence—machine intelligence that is at least as smart as a human being in every area of thought—there may be classes of decisions for which it is intrinsically important to retain a human in the loop. On the common account of American criminal adjudication, the role of prosecutor seems to include such decisions given the largely unreviewable declination authority, whereas the role of defense counsel would seem fully susceptible of automation. And even for the prosecutor, the benefits of automation might outweigh the intrinsic decision-making loss, given that the ultimate decision—by judge or jury—should remain a human (or at least role-reversible) one. Thus, while many details need to be worked out, we might within decades have a criminal justice system consisting of robo-defense lawyers and robo-prosecutors. And even if we never do, their consideration provides another lens through which to consider these roles and, ultimately, our criminal justice system.

Keywords: artificial intelligence, automation, criminal justice, adjudication, prosecution, defense

JEL Classification: K14, K41

Suggested Citation

Henderson, Stephen E., Should Robots Prosecute and Defend? (January 12, 2019). 72 Okla. L. Rev. 1 (2019), Available at SSRN:

Stephen E. Henderson (Contact Author)

University of Oklahoma - College of Law ( email )

300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)


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