Up for Discussion: Should Criminal Lawyers Engage in Crowdsourcing Criminal Investigations?

Marshall_Larry

There can be no debate that, in all but the rarest criminal cases, there is a massive asymmetry between the investigative resources and tools available to the police/prosecution and the resources available to the defense. This disparity goes beyond financial resources and access to armies of investigators. Rather, it includes tools such as the prosecution’s ability to compel potential witnesses to testify before a grand jury, to grant immunity and other consideration to witnesses who will aid the prosecution, and to even threaten some non-cooperative witnesses with criminal charges. The adversarial system can not serve its function as a vehicle for truth-finding when one adversary has such dramatic advantages over the other. If new technologies provide a means through which some of that disparity can be mitigated by defense lawyers enlisting the assistance of “citizen investigators,” that is certainly a positive development.

This is not to say that crowdsourcing of this sort is without its dangers. Law enforcement and lawyers act under significant ethical constraints that ordinary citizens are not universally likely to respect. And there are concerns when either law enforcement or the defense use crowdsourcing as a way of influencing the eventual jury pool in contravention of the governing ethical rules. These concerns call for diligence in assessing the reliability of evidence gathered by “citizen investigators,” and for careful supervision of lawyers generating prejudicial pre-trial publicity. Indeed, it may be that the Rules of Professional Conduct will have to be updated at some point to regulate this new tool. In my view, though, the benefit of enlisting as many people as possible in the goal of accurately convicting the guilty and exonerating the innocent far outweighs the costs this practice generates.

Lawrence C. Marshall is a professor of law at Stanford Law and Co-founder of the Stanford Three Strikes Project. Before joining SLS, he was a professor of law at Northwestern University School of Law where he co-founded and served as legal director of the Center on Wrongful Convictions.

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