Document Type

Article

Publication Date

5-2026

Abstract

Prosecutors regularly rely on AI e-discovery software, known as technology assisted review (TAR) tools, to sort and prioritize digital evidence. These tools implicate constitutional concerns: they can either risk suppressing or help to surface exculpatory and impeachment evidence that prosecutors must disclose under the Brady due process rule. Yet doctrine, agency guidance, and scholarship offer virtually no direction on this problem.

This Article examines how TAR may affect Brady compliance. Using original computer science simulations, we show that TAR can either hide or help to expose Brady evidence, depending on how it is configured. From these results we derive three recommendations: prosecutors should run TAR separately for inculpatory and Brady evidence; courts should permit TAR coding of Brady material even when active searching is constitutionally contested; and procurement guidelines should favor flexible classifiers.

More broadly, our examination of TAR highlights unresolved tensions in Brady doctrine: whether liability attaches when the prosecution possesses but does not know about Brady evidence; how Brady interacts with Fourth Amendment privacy protections; and whether Brady should be limited to preventing suppression, as current doctrine states, or expanded into a full duty to assist defense investigations.

Disciplines

Computer Law | Criminal Procedure | Law | Science and Technology Law

Creative Commons License

Creative Commons Attribution 4.0 International License
This work is licensed under a Creative Commons Attribution 4.0 International License.

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