Neglected Discovery

Authors

Jenia I. Turner, Southern Methodist University, Dedman School of Law
Ronald F. Wright, Wake Forest University, School of Law
Michael Braun, Southern Methodist University, Cox School of Business

ORCID (Links to author’s additional scholarship at ORCID.org)

Jenia I. Turner: https://orcid.org/0000-0001-8474-9171

Ronald F. Wright: https://orcid.org/0009-0005-3591-9521

Michael Braun: https://orcid.org/0000-0003-4774-2119

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. Records from digital evidence platforms reveal that defense attorneys sometimes fail to carry out their professional duty to review discovery. Analyzing a novel dataset we obtained from digital evidence platforms used in Texas, we found that defense attorneys never accessed any available electronic discovery in a substantial number of felony cases between 2018 and 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.

Publication Title

Duke Law Journal

Document Type

Article

Keywords

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

Recommended Citation

73 Duke L.J. 1173 (2024)