E-Discovery in Criminal Cases: A Need for Specific Rules

Article excerpt

This article explores how issues concerning electronic evidence and discovery (e-discovery) and its associated electronically stored information (ESi) are not relegated to civil litigation, and that the subject matter has an equal impact on criminal litigation. The following suggests a rapidly growing need for courts to uniformly recognize the increasing necessity for an accused to access ESi in order to effectively build a defense in modern-day criminal prosecutions where the context in which the ESI was forensically ascertained may be as important to a defendant as the content of the information recovered.

Section I introduces the subject matter of e-discovery and ESi. Section ii addresses the manner in which civil litigation pioneered a judicial focus on codifying specific rules of civil procedure governing the pretrial exchange of e-discovery. Section iii delves into the manner in which the criminal justice system appears to be handling e-discovery in criminal matters. it further discusses an arguable disconnect between traditional rules of criminal procedure addressing pretrial discovery and the growing need for modernization of the rules in criminal proceedings to specifically direct parties on how to uniformly interact concerning ESi where such directions exist in civil litigation matters. (3) Moreover, Section IV addresses the concern that the status quo of e-discovery in criminal matters places parties that lack financial resources at a substantial disadvantage, as opposed to those who are able to retain legal counsel to navigate e-discovery issues. Section V discusses the constitutional implications surrounding e-discovery in criminal matters. Sections VI and VII discuss a proposal for a "balancing test" and possible pretrial discovery tools for the exchange of ESI beyond that which is contemplated in more traditional rules of criminal procedure currently followed by the courts.


Criminal defense lawyers are as obligated as their civil law brethren to be conversant with electronic discovery and its various attendant forms of electronically stored information in order to effectively represent their clients. Modern day communications, through email, the Internet, instant messaging, electronic faxing, and digital voicemail, expand the nature and location of "relevant evidence" as well as the obligations to obtain, preserve, produce and manage this evidence.

ESI evidence when handled properly, or if mishandled, can significantly impact the outcome of a client's civil or criminal case. Importantly, e-discovery assumes a critical role unique to criminal proceedings. unlike hard copy documents and tangible evidence (e.g., gun, picture, clothing, etc.), ESI may contain exculpatory evidence that may not be readily apparent to the prosecution, who maintains custody and control over the ESI. Additionally, the prosecution may improperly possess ESI that should be the subject of a motion to suppress. Finally, the dynamic nature of ESI has the potential to develop into Brady (4) material. The government's obligations under Brady are not rooted in any particular constitutional right to discovery, but rather in the due process protections defendants are afforded in criminal proceedings. (5)

A. How to Obtain Electronic Evidence

A significant issue many criminal defendants may encounter is ascertaining and obtaining electronic evidence in the possession of the prosecution. The greatest challenge may well lie in successfully convincing the court that the prosecution's approach to the pre-trial exchange of ESI will adversely impact the defendant's constitutional and procedural rights in building a full and fair defense to the government's charges. The expense and burden of e-discovery must be balanced against the potential of a criminal defendant losing one's liberty.

B. What the Constitution Says About Electronic Discovery

The United States Supreme Court primarily has grounded a defendant's rights to fairness in the criminal process on the defendant's right to invoke the protection of the Fifth Amendment. …