How Public Defenders Face a Technology Gap

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People accused of crimes are supposed to have an advantage. The burden of proof is on prosecutors, and the government must turn over its evidence to defendants. In practice, one way in which the deck is stacked against defendants involves technology, the New York Times reports. Law enforcement agencies can use warrants and court orders to compel companies to turn over emails, photos and other communications; defense lawyers have no such power. The government has access to forensic technology that makes digital investigations easier. Machines and software designed to extract data from computers and smartphones were primarily sold to law enforcement. Initially, investigators used such technology to gather evidence about computer crime and child pornography. Now, digital forensics can play a role in virtually any case, because the data inside Facebook accounts, smartphones and devices people wear contains much of our day-to-day movements and communications.

The Legal Aid Society, New York City’s largest public defender office, realized in 2013 that it needed to buy the same tools the police had: forensic devices and software from companies including Cellebrite, Magnet Forensics and Guidance Software. The expensive technology unearths digital evidence that is otherwise hard or impossible to find, and it captures it in a format that can hold up in court, as opposed to evidence that could have been tampered with or forged. A device can yield emails, text messages, call logs, location history, photos, metadata and more — even material that has been deleted. The Legal Aid Society’s forensic lab is a rarity in the world of public defenders; most tightly budgeted offices simply can’t afford it. The bill for the equipment was $100,000, a fortune in a public defender’s budget, but a small amount by the standards of the Manhattan district attorney’s office, which in 2016 built a forensics lab for $10 million.

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