AI Suppression: E-Discovery Software and Brady

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 exculpatory/impeachment 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 exculpatory or impeachment evidence; how Brady interacts with Fourth Amendment privacy protections; and whether Brady should be limited to preventing suppression or expanded into a full duty to assist defense investigations.

Full article

An abbreviated version of this Article will appear in the conference proceedings for the ACM Symposium on Computer Science and Law (2026). The full version of this Article is forthcoming in Volume 27 of The Columbia Science and Technology Law Review.