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Artificial intelligence (AI) has quickly moved from novelty to necessity in the practice of law. Court systems are experimenting with automated tools, prosecutors are relying on increasingly opaque forensic algorithms, and defense lawyers are turning to AI-assisted research, drafting, and investigation to cope with crushing caseloads. Despite its promise, the rapid spread of AI presents profound ethical challenges — challenges that uniquely affect criminal defense lawyers and the clients whose liberty depends on our vigilance.
As criminal defense lawyers, we stand at the intersection of constitutional rights and technological innovation. We must embrace tools that can enhance our advocacy while resisting those that threaten due process, privacy, and the presumption of innocence. That balance requires clear ethical grounding.
1. Competence in the Age of Algorithms
The duty of competence now includes technological competence. AI-enhanced legal research, transcript analysis, or evidence review can reduce hours of labor to minutes, leveling the playing field against resource-rich prosecutors’ offices. But using these tools responsibly requires understanding their limits — how they were trained, what data they rely on, and where they are prone to error.
A lawyer who deploys AI without such understanding risks relying on inaccurate outputs, mischaracterizing precedent, or — worst of all — missing critical issues. Competence demands not only knowing the law but also knowing how the tools that help us find the law actually work.
2. Confidentiality in a Cloud-Driven World
Criminal cases involve deeply personal, often sensitive information about the accused. Introducing client facts into third-party systems — especially AI systems that may store input for training or future refinement — raises serious confidentiality concerns.
Before using any AI tool, we must ask:
- Where is the data stored?
- Who has access to it?
- Is it encrypted or anonymized?
- Is the provider contractually barred from using it to train future models?
Client information cannot become a hidden data point in a corporate dataset. The Sixth Amendment does not allow for “data leakage.”
3. Avoiding Unauthorized Practice of Law by the Machine
AI systems increasingly draft motions, propose arguments, or suggest litigation strategies. While these outputs can be helpful, they are not legal analysis — they are predictions based on patterns in text.
The ethical obligation is clear: AI may assist in generating ideas, but it cannot replace professional judgment. The ultimate decisions — what argument to raise, what strategic path to pursue, what risks to take — belong solely to us. Delegating those choices to software is, in effect, delegating our duty to the client.
4. Ensuring Fairness When the Government Uses AI
The most troubling ethical challenge is not how we use AI, but how the prosecution and law enforcement use it — often without transparency or accountability.
Risk assessment algorithms, facial recognition software, predictive policing tools, and proprietary forensic technologies routinely enter criminal cases shielded by “trade secrets.” Defendants are asked to trust algorithms they are forbidden to examine. This violates basic principles of due process.
Defense lawyers must be relentless in challenging these systems by:
- demanding disclosure of training data, error rates, and underlying methodologies;
- exposing racial, socioeconomic, and geographic biases baked into algorithmic tools; and
- urging courts to treat opaque algorithms with the same skepticism applied to any scientific evidence that fails Daubert scrutiny.
5. Equity in Access
AI can deepen existing inequities in the criminal legal system. Well-funded offices can afford sophisticated AI platforms, while public defenders and small practices struggle with cost and infrastructure barriers.
As the nation’s leading voice for criminal defense, NACDL must play a critical role in pushing for:
- affordable, ethically designed tools accessible to all defense lawyers,
- training programs that demystify AI for practitioners, and
- policies ensuring that technological innovation does not widen the justice gap.
6. Preserving the Human Core of Our Work
Ultimately, criminal defense is not a data problem — it is a human one. No algorithm can replicate the trust of a client who feels heard, the intuition honed by years at counsel table, or the moral courage required to confront the machinery of the state.
AI may help us work smarter, but it cannot help clients feel safer, nor can it persuade a jury with empathy or tell a story with moral truth. Those remain wholly, necessarily human.
A Call for Leadership
As NACDL members and leaders, we must continue to guide the legal community in shaping the ethical use of AI rather than being shaped by it. That means:
- adopting clear standards for responsible use,
- educating the bench and bar,
- fighting for transparency from law enforcement, and
- ensuring technology strengthens — rather than undermines — constitutional rights.
The future of criminal defense will undoubtedly involve AI. Our responsibility is to ensure that this future reflects justice, fairness, and the unwavering commitment to liberty that defines our profession.
About the Author
Andy Birrell is a Fellow of the American College of Trial Lawyers and a Fellow of the American Board of Criminal Lawyers. He represents clients in all phases of criminal law and related matters from grand jury investigations through trials and appeals in federal and state courts throughout the United States. Birrell is also a seasoned appellate lawyer, having argued before the United States Supreme Court and the United States Court of Appeals for the Eighth Circuit.
Andrew S. Birrell (NACDL Life Member)
Birrell Law Firm, PLLC
Minneapolis, Minnesota
612-238-1939
andy@birrell.law
https://www.birrellcriminaldefense.com
