Defense Use of Digital Discovery in Criminal Cases: A Quantitative Analysis

Abstract

Recent criminal court reforms have required prosecutors to provide defense attorneys with broader and earlier discovery of evidence. For these discovery reforms to fulfill their aims of improved fairness and efficiency, defense attorneys must take advantage of the evidence disclosed by the prosecution. Prior studies suggest, however, that a range of factors, including low pay and high caseloads, impede effective defense representation in general. If similar factors hinder defense attorneys from reviewing discovery, discovery reforms would fail to meet their goals, and defendants would receive substandard representation. 

The recent adoption of digital evidence platforms by local jurisdictions allows us to study whether defense attorneys consistently fulfill their duty to review discovery. Analyzing data from digital evidence platforms used in felony cases in four Texas counties between 2018 and 2020, we examine whether and when defense attorneys fail to access evidence disclosed by the prosecution. We find that a substantial number of defense attorneys never access the discovery. The access rate varies by county, offense seriousness, attorney category, attorney experience, and file type. Drawing on review of prior scholarship and Bayesian analysis of the data, we discuss plausible interpretations of these variations.

Keywords: disclosure, digital evidence, criminal defense, effective assistance of counsel, discovery, Bayesian analysis