In an era defined by rapid technological advancement, the practice of criminal law is undergoing profound transformation. For decades, law enforcement agencies have held a technological upper hand and benefited from sophisticated surveillance systems, forensic laboratories, and vast digital databases. But the tide is shifting. Today's criminal defense attorneys have unprecedented opportunities to harness technology not only to match the Government's capabilities but to challenge and reshape how justice is pursued.
This article explores key areas where technology intersects with criminal defense and outlines practical and strategic ways practitioners can leverage it to better advocate for clients and uphold constitutional protections.
Surveillance and Digital Evidence: A Double-Edged Sword
From mobile phone metadata to social media content, the digital trail left by modern life is increasingly used by law enforcement to investigate and prosecute crimes. Defense attorneys now routinely encounter digital evidence ranging from location tracking and text messages to data collected by smart home devices or vehicle infotainment systems.
Understanding how this evidence is obtained, interpreted, and introduced is vital. For example, while cell site location information (CSLI) can place a defendant in a general area, it lacks the precision often implied in court. The U.S. Supreme Court's decision in Carpenter v. United States, 585 U.S. 296 (2018), underscored the need for a warrant when accessing a person's data, which reinforced the defense's role as guardian of privacy and Fourth Amendment rights in the digital era.
Effective advocacy requires not only challenging unlawful data collection but also understanding how digital evidence can be misrepresented or misunderstood. That means becoming conversant with forensic principles, working alongside forensic experts, and filing appropriate motions to compel discovery, suppress evidence, and limit its use at trial.
Digital Forensics and Independent Analysis
One of the most promising developments for defense attorneys is the growing accessibility of digital forensic tools. Rather than accept the prosecution's analysis at face value, defense teams now have the capability to perform independent examinations of devices, emails, hard drives, and more.
Digital forensics can reveal deleted files, establish alibis, detect tampering, or uncover exculpatory evidence overlooked in initial investigations. Whether using commercial platforms or vetted opensource software, defense attorneys should prioritize collaborating with forensic experts early in a case. These tools are an essential way of corroborating a defendant's version of events and providing an effective defense at trial.
Moreover, courts are increasingly supportive of defense efforts to obtain raw data and conduct independent analysis. Strategic use of subpoenas, protective orders, and stipulations can secure critical access while maintaining evidentiary integrity. A robust motion practice in this area can yield tangible trial advantages and improve negotiating leverage.
AI, Algorithms, and the Fight for Transparency
Artificial intelligence (AI) and algorithmic decision-making tools — used in facial recognition, risk assessment, and predictive policing — are now regularly deployed in the criminal justice system. For example, law enforcement agencies use handheld mass spectrometer devices for field testing drugs and voice analysis of 911 calls to evaluate callers' veracity. Yet the underlying reliability of these systems is often opaque and proprietary, raising significant constitutional concerns.
Defense attorneys must remain alert to the hidden influence of these tools. A risk-assessment algorithm used at arraignment, for example, may carry racial or socioeconomic bias and directly affect pretrial liberty. Facialrecognition software, still prone to error — especially among people of color — has already led to wrongful arrests in several high-profile cases.
Legal strategies in this domain should include discovery demands for algorithmic source code, Daubert challenges to the reliability of outputs, and constitutional arguments concerning the right to confront the methodology underlying accusatory evidence. Where appropriate, expert testimony and amicus support can strengthen challenges to unjust or unvetted technological tools.
Litigation Technology and Trial Presentation
Technology is not only transforming evidence but also redefining how we present our cases. Effective use of courtroom technology — such as digital timelines, video evidence annotation, and 3D reconstructions — can clarify complex facts, highlight inconsistencies, and engage jurors in ways that oral advocacy alone cannot. We have always known about the power of visual aids. Now, presenting them at trial is easier than ever.
Trial presentation software such as TrialPad, OnCue, and PowerPointbased tools allows defense attorneys to build compelling narratives that resonate visually. High-definition displays, synchronized transcript playback, and virtual reality tools can transport jurors to the scene of the incident and offer persuasive and immersive advocacy.
Additionally, tools for managing voluminous discovery — especially in white-collar or multi-defendant cases — allow for better organization, faster review and retrieval, and more effective use at trial. Secure portals for file sharing, cloud-based collaboration, and document-review platforms are quickly becoming essentials in the defense toolkit. Even better, many can be run from a single laptop by one attorney.
Ethics, Security, and the Digital Divide
With these new tools come new responsibilities. The ethical duty of competence now extends to technological proficiency. Rule 1.1 of the Ohio Rules of Professional Conduct, Comment 8, emphasizes the obligation to stay current with “the benefits and risks associated with relevant technology.” This includes understanding how to protect digital evidence, communicate securely with clients, and safeguard the attorneyclient privilege and duty of confidentiality in an increasingly connected world.
Encryption, secure file transfer, multifactor authentication, and cyberhygiene protocols should be standard practices in every defense firm regardless of size. Tools such as Signal, ProtonMail, and encrypted cloud storage provide reasonable and often low-cost solutions to these ethical imperatives.
Equally pressing is the issue of access. Many indigent clients lack smartphones, stable internet access, or digital literacy. Further, many lawyers lack access to sophisticated digital tools and forensic assistance. Public defenders and court-appointed counsel must be mindful of these disparities and develop strategies to guarantee access to the same tools used by law enforcement and prosecutors. When necessary, this should include applying to courts for funding of these resources. Meanwhile, courts, bar associations, and defender organizations should continue to advocate for funding that ensures equal access to technology. This is essential to protecting defendants' right to the effective assistant of counsel.
The Path Forward
Technology is not a silver bullet — it is a tool, one that can be wielded to either reinforce existing power imbalances or to challenge them. For too long, the balance of power in the criminal system has favored the prosecution and been bolstered by superior access to investigative and forensic technology.
But today, defense attorneys have the opportunity — and responsibility — to reclaim ground. By embracing forensic science, demanding algorithmic transparency, mastering digital presentation tools, and securing sensitive data, defense lawyers can deliver more effective, ethical, and constitutionally sufficient representation.
Ultimately, leveling the technological playing field is not just about winning acquittals — it is about restoring balance in a constitutional system designed to protect the rights of the accused. As stewards of liberty and due process, criminal defense attorneys must meet this moment with both vigilance and vision.
Originally published by Columbus Bar Association's.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
