Criminal E-Discovery, Part 1 of 5: 21st Century Paperless Trails

Criminal E-Discovery: 21st Century Paperless Trails
Part 1 of 5 

Much to the chagrin of criminal lawyers who often lament “why did my client open his big mouth to the cops,” the criminal case has gone “paperless.” Criminal lawyers will now be heard advising their clients “Don’t put anything in e-mail or on the internet unless you want the cops to read it!”

Additionally, the landscape of criminal defendants is changing rapidly. The “fancy pants” CEOs of the large mortgage companies or financial firms do not see themselves “hanging” with common criminals; they make their deals at the club or on the golf course. The problem is that the business following such meetings is memorialized by electronic communication, and unknown to them, these business practices have caught the attention of the government. Welcome to 21st century communications.

Modern day communications, through e-mail, the web, 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. There exists a rapidly emerging need for courts to uniformly recognize the increasing necessity for an accused to access electronically stored information (ESI) in order to effectively build a defense in modern-day criminal prosecutions. Furthermore, the context in which the ESI was forensically ascertained may be as important to a defendant as the substantive information recovered.

Free email accounts like Yahoo!, Gmail, and Hotmail, along with a competitive mobile communications market offering an affordable unification of services like email, voice plans, and data on a single handheld device expands the universe of the “forms” of evidence at issue (irrespective of whether the crime being prosecuted is “corporate” or “street” in nature). The landscape of criminal defendants is also changing rapidly.

ESI evidence can significantly impact the outcome of a client’s civil or criminal case. 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 that maintains custody and control over the ESI. Additionally, the prosecution may improperly be in possession of ESI that should be subject of a motion to suppress which may exculpate a defendant or affect the strength of the prosecution’s case.

** This is the first part in a five-part series which comprise an abridged version of the article “Criminal Cases Gone Paperless: Hanging With the Wrong Crowd,” written by Daniel Garrie and published in the San Diego Law Review.