Technology touches every aspect of our lives at this point. The criminal justice system is no exception, and attorneys must adapt. A patchwork of tech devices, apps and other consumer hardware tracks many of our daily activities, even when we may not realize it.

These digital receipts – indicators of what you were doing, from where, and when – are becoming an increasingly important aspect of criminal cases. If a defense lawyer fails to explore this space, it can spell trouble for their client.

Embracing electronic discovery

The rise of smartphones, apps, wearables, activity tracking and other technological advances has made electronically stored information – ESI, for short – more relevant than ever. For a long time, ESI was considered an afterthought in criminal cases. That has changed, as this paper from a criminal law professor at Northwestern University explains.

“Smartphones, digital devices, and programmable home appliances have become central to our daily lives, and the evidence they generate is increasingly used in the prosecution and defense of criminal cases,” the author writes. Everything from “FitBits to PlayStations” could be the source for important evidence.

While the emergence of ESI in criminal cases has led to many unanswered questions, one thing is clear: Any attorney involved in a case must consider, collect and manage digital evidence in a responsible manner. But what if a defense attorney fails to do so?

Ineffective assistance of counsel

Negligently poor legal representation (referred to as ineffective assistance of counsel) can lead to a legal malpractice claim. For example, if an attorney fails to explore a claim that might help their client’s case, does not inform their client of certain things, or does not properly vet available evidence, that might amount to ineffective assistance of counsel.

The digital world, now more prevalent than ever, cannot be overlooked by a defense attorney. It has reached a point where falling short during the electronic discovery process is held up as an example of potential attorney malpractice.

Ineffective assistance of counsel is one of the common reasons behind post-conviction relief claims. An attorney has a responsibility to live up to a reasonable standard. Proper evidence presentation and management is part of that.

Remaining blind to the digital space may be a potentially serious issue.