Neglected Discovery

Abstract

In recent decades, many states have expanded discovery in criminal cases. These reforms were designed to make the criminal process fairer and more efficient. The success of these changes, however, depends on whether defense attorneys actually use the new discovery opportunities to represent their clients more effectively. Evidence from digital platforms, which courts use to enable the exchange of evidence between prosecution and defense, reveals that defense attorneys sometimes fail to carry out their professional duty to review discovery.

Analyzing a novel data set we obtained from digital evidence plat-forms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number felony cases between 2018-2020. We also found that the access rate varied by county, year, offense type, attorney category, attorney experience, and file type.

To better understand when and why attorneys neglect the available discovery, we supplemented the analysis of digital platform data with interviews of more than three dozen Texas criminal defense attorneys. We learned that defense attorneys were aware that many of their peers fail to review discovery in felony criminal cases. Our interviewees identified several explanations for the failure to access evidence. These include a lack of technological skills and support, the overwhelming volume of digital discovery, the client’s desire for fast resolution of the case, the lesser gravity of some cases, high caseloads, low compensation, and in some cases, simple lack of diligence. We consider the implications of these attorney practices for ineffective assistance of counsel litigation, effective supervision of defense attorneys, and criminal law reform.

Keywords: criminal defense, discovery, digital evidence, e-discovery, ineffective assistance of counsel, digital discovery, criminal procedure, quantitative analysis, qualitative analysis

JEL Classification: K14, K41, K42