Disclosure, Security, Technology

Criminal disclosure rules in all common law jurisdictions are organized around the same sets of conflicting aims. Pre-trial evidence disclosure is essential to fair and accurate adjudication. Yet certain types of information, such as identities of undercover operatives and ongoing law enforcement surveillance, must be kept confidential. Beyond these tensions, disclosure practices face new challenges arising primarily from evolving technology and investigative tactics. This chapter describes divergent approaches across common law jurisdictions—especially among U.S. states—to these challenges and offers explanations for their differences. It also sketches the technology-based challenges that discovery schemes face and offers options, or tentative predictions about their resolution. Differences often turn on who decides whether to withhold information from the defense—judges or prosecutors—and when certain information must be disclosed. Broader disclosure regimes tend to put greater trust in judicial capacity to dictate or at least review hard questions about the costs, benefits, and timing of disclosure; narrower systems leave more power in prosecutors’ hands. Technology has multiplied challenges for disclosure policy by vastly increasing evidence-gathering tactics and thus the nature and volume of information. Disclosure rules adapted fairly easily to the rise much forensic lab analysis. But fast-growing forms of digital evidence is more problematic. Defendants may lack the time to examine volumes of video and technical resources to analyze other data; sometimes prosecutors do as well. The chapter identifies some possible solutions emerging through technology and law reform, as well as trend toward greater judicial management of pre-trial disclosure.