Prosecutors are joining the big data revolution, adopting “intelligence-driven” strategies to target crime patterns. Centralized big data systems now track offenders, places, and groups allowing prosecutors to link crimes by time, place, associations, or other connections. Adding to these types of formalized, structured databases are growing sources of raw, unstructured big data from digital surveillance technologies like video cameras, police body cameras, and automated license plate readers. The prosecutors of the future will sit on a wealth of valuable investigative insights – all searchable and potentially relevant for a more aggressive and proactive investigation strategy.But as helpful as these new forms of centralized data collection might be for investigators, there remains a critical open issue: the systems were not designed to identify the exculpatory and impeaching material prosecutors are required to disclose under Brady v. Maryland. The information exists in the government’s possession, but cannot be obtained because of the way the systems were designed.This Article examines the design flaw at the core of the intelligence-driven prosecution model – a flaw that creates a due process problem that threatens to undermine the legality and legitimacy of this innovation. It is an urgent examination because intelligence-driven prosecution is being promoted nationally as the future of prosecution.The Article also explores how big data prosecution necessitates a new theory of Brady. The shift away from an individualized, reactive approach to crime requires a parallel shift in Brady theory. In an intelligence-driven prosecution system, Brady should be understood to include a proactive search for relationships and patterns, a broader quantitatively search through shared systems, a structured process for qualitative assessments, and even the possibility of predictive analytics to flag potential Brady material.This Article develops a new Brady theory consistent with the changed technology. Fortunately, precisely because of the networked technology at issue, big data information systems can be reengineered to flag, link, evaluate, and predict relevant data for prosecutors. This Article offers a way to engineer a theoretical and technological solution to current Brady practice consistent with due process principles.
Ferguson, Andrew, "Big Data Prosecution and Brady" (2020). Articles in Law Reviews & Other Academic Journals. 737.