The Quiet Revolution in Criminal Defense

A system built on hair microscopy, secret DNA algorithms, and digital dragnets is being challenged from courthouses to statehouses — and defense attorneys are beginning to fight back with the same tools prosecutors used to wield.** [3][4]

1. The Geofence Era Ends at the Supreme Court

For nearly a decade, prosecutors used "geofence warrants" — bulk-data requests that compelled Google to hand over location data for every cellphone near a crime scene — as a routine investigative tool. [3][25] In June 2026, the Supreme Court drew a line. In Chatrie v. United States, the justices ruled 6-3 that using a geofence warrant to obtain evidence against a Virginia man accused of a 2019 bank robbery constituted a "search" under the Fourth Amendment. [22][26] Justice Elena Kagan, writing for the majority, held that individuals retain a reasonable expectation of privacy in records of their cellphone's location, and that police intrude on that interest even when the data comes from a third-party tech company and covers only a limited time. [22] The decision did not ban geofence warrants outright; it sent the case back to the lower courts to determine whether the search was "reasonable." [24] But the ruling reframed the legal landscape: location data is no longer a free-for-all for law enforcement. [22][26]

The Chatrie decision landed alongside another structural change. In December 2023, Google announced it would shift Location History storage from its servers to users' devices — a move that effectively ended the company's role as the primary target of geofence warrants. [41][42] As TechCrunch reported at the time, the use of geofence warrants had "exploded" in the years since the practice was first revealed in 2019. [41] Google's policy change, combined with the Court's constitutional ruling, has forced prosecutors to seek more targeted investigative tools. [41][42][43]

2. AI Comes to Public Defense — Ethically

The same generative AI that prosecutors have used to analyze evidence and draft motions is now being deployed on the other side of the aisle — but with guardrails. In July 2026, the National Association of Criminal Defense Lawyers released Parity in Practice: The Defender's Duty to Ethically Use AI, a white paper offering defense attorneys a roadmap for putting generative AI to work "thoughtfully, ethically, and to the benefit of their clients." [40][21] The paper argues that AI parity is not optional: if prosecutors use AI to build cases, defenders must use AI to test them, or risk violating their ethical obligation to provide competent representation. [39][21]

The NACDL's framework arrives as defenders across the country experiment with the technology. In Miami-Dade County, the Public Defender's office has integrated AI for legal research and case preparation. [1] In California, Berkeley Law's Criminal Law and Justice Center has launched an AI-for-Public-Defenders initiative. [2] A 2025 arXiv study by Inyoung Cheong, Patty Liu, Dominik Stammbach, and Peter Henderson — based on interviews with 17 public defense professionals — mapped the daily workflow of defenders into five pillars (evidence investigation, legal research, document review, client communication, and courtroom advocacy) to identify where AI can genuinely help and where it risks harm. [60]

3. Bodycam Transcription: AI as Force Multiplier

One of the most concrete AI-in-defense success stories involves body-worn camera footage. Public defenders routinely face hundreds of hours of video per case; reviewing it all is mathematically impossible given existing staffing. [15] JusticeText, a legal tech company, rolled out AI-powered bodycam transcription for the Kentucky Department of Public Advocacy in May 2026. [62] The Kentucky DPA, established in 1972, handles more than 140,000 cases annually with a team of nearly 400 attorneys. [62] The partnership allows defenders to search, clip, and timestamp footage rather than watch it linearly — a task-level intervention that the Cheong et al. study identified as ripe for AI assistance. [60][62]

4. When AI Meets the Courtroom: The Puloka Precedent

Not all AI evidence survives contact with a jury. In State of Washington v. Puloka (2024), a Washington state superior court judge rejected the admission of video exhibits "enhanced by artificial intelligence" for use in a jury trial — an apparent issue of first impression. [49] The defendant, Joshua Puloka, was charged with three counts of murder from a 2021 shooting. The unaltered 10-second source video had already been entered into evidence. The defense sought to admit an AI-enhanced version, arguing that the original was low-resolution, motion-blurred, and "blocky." [49] The judge's refusal to admit the enhanced video signaled judicial skepticism toward AI-modified evidence — a precedent prosecutors and defenders alike are watching closely as generative AI tools become cheaper and more accessible. [49]

5. The Liar's Dividend: Deepfakes and the Burden of Proof

The flip side of AI-generated evidence is AI-denial. The "liar's dividend" — a term coined by Robert Chesney and Danielle Citron — describes the phenomenon in which bad actors exploit growing awareness of deepfakes by claiming authentic evidence was AI-generated. [61] As one scholar put it, "as education about the risks of AI-generated content grows, it becomes easier for bad actors to leverage that skepticism and claim that authentic evidence was created by AI." [61] For defense attorneys, the liar's dividend cuts both ways: it can be used to challenge genuine prosecution evidence, but it also makes it harder to introduce legitimate digital evidence that might be dismissed as synthetic. [61]

Congress has moved to address AI-generated child sexual abuse material through the TAKE IT DOWN Act, which criminalizes the non-consensual publication of intimate images — including AI-generated depictions. [30][31] But the liar's dividend problem extends well beyond CSAM into the heart of criminal adjudication: when any video, audio, or photograph can be plausibly denied as a deepfake, the epistemological foundations of evidence themselves are shaken. [61]

6. Confrontation and the Forensic Analyst: *Smith v. Arizona*

The Supreme Court's 2024 decision in Smith v. Arizona clarified a critical Sixth Amendment question: when an expert witness conveys an absent lab analyst's statements, and those statements support the expert's opinion only if they are true, the statements come into evidence for their truth and thus implicate the Confrontation Clause. [36][37] The 9-0 ruling, authored by Justice Kagan, means that prosecutors cannot circumvent a defendant's right to confront witnesses by having one analyst vouch for another's lab work without producing the original analyst for cross-examination. [36] The decision reverberates through forensic disciplines — from DNA to drug chemistry to fingerprint analysis — where surrogate testimony has been common. [36][37]

7. Probabilistic Genotyping: The Secret Algorithm Problem

Beneath the surface of modern DNA evidence lies a controversy over proprietary software. Probabilistic genotyping (PG) programs — such as TrueAllele and STRmix — use complex statistical models to analyze DNA mixtures that would otherwise be uninterpretable. [6] The problem: the source code is often shielded as a trade secret, preventing defense experts from scrutinizing the algorithms that helped secure a conviction. [6][7] A Criminal Legal News investigation in 2025 documented how PG software "promises to unravel the chaos of complex DNA mixtures" but operates in secrecy, raising the question: can defendants challenge evidence derived from algorithms they are not allowed to see? [6] The National Institute of Justice has funded research into the uncertainty inherent in probabilistic genotyping, but admissibility standards vary wildly by jurisdiction. [7][6]

8. The FBI Hair-Testing Scandal: A Cautionary Tale

The limits of forensic science are not theoretical. In a stunning admission, the FBI acknowledged that its microscopic hair analysis testimony contained errors in at least 90 percent of cases under ongoing review. [52] A National Registry of Exonerations report documented how hair comparison evidence — once presented as near-certain identification — contributed to wrongful convictions across the country. [53] The hair-analysis scandal predates the AI era but offers a template for understanding how forensic "science" gains institutional authority before its error rates are properly understood. [10][11]

9. Exonerations in 2024: 147 and Counting

The National Registry of Exonerations documented 147 exonerations in 2024, a figure that "underscores both the resilience of those wrongfully convicted and the systemic failures that led to their imprisonment." [5] The cases reveal patterns of official misconduct, racial disparities, and the critical role of specialized organizations. [5][27] Meanwhile, the Innocence Project reports that its clients have collectively spent 4,102 years wrongfully incarcerated; 205 clients have been exonerated by DNA evidence. [29] Conviction Integrity Units — specialized prosecutor-office divisions that review past convictions — have expanded, with the NRE tracking CIUs across the country. [54]

10. Risk Assessment Under Scrutiny

The First Step Act's PATTERN risk-assessment tool, used to classify federal prisoners for recidivism risk, underwent a mandated 2023 revalidation by the National Institute of Justice. [8][9] Critics argue that risk-assessment instruments encode racial bias. A University of Michigan Ford School study found that pretrial risk-assessment tools are "subjective and biased," potentially reproducing the disparities they claim to eliminate. [38] The Department of Justice continues to refine PATTERN, but the debate over whether algorithmic neutrality is achievable — or even coherent — remains unresolved. [8][9][38]

11. California's Racial Justice Act: Promise and Frustration

In 2020, California enacted the Racial Justice Act (RJA), allowing defendants to challenge racial bias at multiple stages of prosecution. Four years later, the law has produced only a handful of successful motions. [46] CalMatters reported in November 2024 that a "Garrison Project and CalMatters analysis of the Racial Justice Act found about a dozen successful cases in which judges took action on racial bias in the legal process." [46] Stanford Law School researchers have since developed a statistical toolkit to help defenders bring RJA claims grounded in empirical disparities rather than anecdotal evidence. [47][48]

What to Watch

The next frontier is integration. As AI tools become standard in both prosecution and defense, the defense bar's challenge is not access to technology but literacy, ethics, and quality control. [21][39] The NACDL's Parity in Practice framework is a start, but implementation will require funding, training, and a willingness to treat AI as an instrument of zealous advocacy rather than a cost-cutting substitute. [40][39] Geofence warrants are constrained but not dead. [22][41] Forensic reform is piecemeal. [10][11] And the liar's dividend is only beginning to reshape how juries evaluate evidence. [61] The algorithm is on trial — and the verdict is still out.

A wave of reforms — from jury rooms to jailhouses — is reshaping what it means to face the justice system, one statute and Supreme Court term at a time.

In a Massachusetts courtroom this spring, a judge gave jurors new instructions before they weighed an eyewitness identification [63]. For the first time in over a decade, the Commonwealth's model instructions explicitly told jurors that memory "does not function like a videotape" and walked them through the science of how stress, cross-racial identification, and suggestive police procedures can corrupt even the most confident identification [63]. It is a quiet revolution — not the kind that makes cable news, but the kind that determines whether innocent people go to prison [63].

That Massachusetts instruction is one thread in a broader fabric of reform sweeping through American criminal defense in 2025 and 2026. Across the country, legislatures, courts, and prosecutors are revisiting foundational assumptions about eyewitness reliability, the right to a lawyer, the finality of long sentences, the fairness of jury selection, and the conditions under which people are held before trial. This article surveys the most consequential changes — and the fault lines they expose.

Eyewitness Identification Reform

Eyewitness misidentification remains the single largest contributor to wrongful convictions proven by DNA evidence, present in roughly 69 percent of such cases [63]. The 2026 Massachusetts Model Jury Instructions represent the most significant update in over a decade, incorporating scientific developments on confidence statements, witness familiarity, and exposure to outside information [63]. They also address showups, lineups, and in-court identifications — procedures long known to be vulnerable to suggestion [63]. The instructions are shorter and use plainer language than their 2015 predecessors, a deliberate choice to improve juror comprehension [63].

Other states have moved on the procedural front, adopting double-blind lineup administration and recording requirements [64]. But Massachusetts's revision is notable because it translates the science directly into the judge's charge — the moment when abstract research meets the practical question a jury must answer [63].

Defender Caseload Caps and the Oregon Crisis

The right to counsel means nothing if the lawyer has no time to read the file. In Washington State, the Supreme Court responded to what it called a "crisis" by slashing caseload limits in June 2025: from 150 felonies and 400 misdemeanors per year down to 47 felonies or 120 misdemeanors, depending on practice area [65]. The court acknowledged local governments might need up to a decade to comply but warned that action could not wait [65].

Oregon's crisis arrived earlier and more acutely. By 2023, the state's public defense system had effectively collapsed, with the Marion County Public Defenders notifying the court that their staff of 18 was carrying the workload of nearly 30 attorneys [66]. The Oregon Supreme Court confronted a case in which judges were forcing lawyers to take new clients even when those lawyers said they were too overwhelmed to provide constitutionally adequate representation [66]. The crisis illustrated a structural truth: caseload standards are only as good as the funding and workforce behind them [66].

Second-Look Resentencing: DC's IRAA and California's § 1172.1

For people sentenced decades ago, a growing number of jurisdictions are creating off-ramps [67]. Washington, D.C.'s Second Look Amendment Act of 2019 — effective April 27, 2021 — allows incarcerated individuals who committed crimes before age 25 and who have served at least 15 years to petition for resentencing [68]. The law expanded the earlier Incarceration Reduction Amendment Act (IRAA), which had been limited to offenses committed before the 18th birthday [68].

California took a different path with Penal Code § 1172.1, which allows courts to recall and resentence defendants on the recommendation of the secretary of corrections, the Board of Parole Hearings, a district attorney, or the Attorney General [69]. The statute creates a presumption favoring recall and resentencing that can only be overcome if the court finds the defendant poses an unreasonable risk of danger to public safety [69]. The provision explicitly directs courts to consider postconviction factors including disciplinary records, rehabilitation evidence, and whether age and time served have reduced the risk of future violence [69].

Compassionate Release After the First Step Act

The First Step Act of 2018 transformed federal compassionate release by allowing prisoners — not just the Bureau of Prisons — to file motions for sentence reduction [70]. Before the Act, only the BOP could initiate such motions, and the process was widely criticized as inconsistent and ad hoc [70]. District courts retain broad discretion to grant or deny motions, but the change in who can file has been consequential: in fiscal year 2020, prisoner petitions accounted for 96 percent of compassionate release grants [70].

Yet the system remains uneven [70]. The U.S. Sentencing Commission has lacked a quorum for much of the time since the First Step Act's passage, leaving district courts without binding guidelines specific to prisoner-filed motions [70]. The latest data shows only 15.2 percent of motions were granted in fiscal year 2025 [71], a figure that reflects both the stringency of the "extraordinary and compelling reasons" standard and a post-COVID judicial retrenchment on health-based claims [70]. Circuit courts have split on whether the Sentencing Commission even has authority to issue binding guidance, adding another layer of uncertainty for petitioners [71].

Juvenile LWOP, Miller Fixes, and Jones v. Mississippi

The Supreme Court's 2012 decision in Miller v. Alabama prohibited mandatory life-without-parole sentences for juveniles, and Montgomery v. Louisiana made that rule retroactive. In the years since, more than two dozen states have enacted legislation eliminating juvenile LWOP or creating resentencing mechanisms [72]. Colorado retroactively eliminated the sentence in 2016, providing parole eligibility after 40 years [72]. Connecticut, Delaware, Nevada, Oregon, and the District of Columbia followed with their own statutes, each calibrating parole eligibility to the severity of the offense [72].

But the Court's 2021 decision in Jones v. Mississippi narrowed the doctrine. In a 6-3 ruling, the Court held that the Eighth Amendment does not require a finding that a juvenile is permanently incorrigible before imposing an LWOP sentence [73]. Brett Jones, who received LWOP at age 15, had his sentence upheld. The Court reasoned that a discretionary sentencing system is constitutionally sufficient — that Miller requires only consideration of youth, not a formal finding of incorrigibility [73]. The decision gave states broad latitude, and many have used it to re-impose life sentences on juveniles whose mandatory terms were struck down.

Brady, Giglio, and Misconduct Databases

Prosecutors have a constitutional obligation under Brady v. Maryland to disclose exculpatory evidence, and under Giglio v. United States to disclose impeachment material affecting witness compliance [74]. Compliance has long been uneven. Some offices are now building institutional infrastructure to address it. The Cook County State's Attorney's Office maintains a "Disclosure List" of witnesses subject to disclosure and a separate "Do Not Call List" of officers the office will not call as witnesses due to misconduct allegations or ongoing investigations [74]. A database tracks officers subject to disclosure requirements and is accessible to all assistant state's attorneys [74].

These databases represent a structural response to a structural problem [74]. When impeachment material is scattered across personnel files, internal affairs records, and civil litigation, a centralized tracking system is a prerequisite for compliance [74]. Whether other jurisdictions adopt similar models depends on funding, political will, and the willingness of prosecutors to self-police [74].

Rodriguez and Traffic-Stop Suppression

The Supreme Court's 2015 decision in Rodriguez v. United States established a clear rule: absent reasonable suspicion, police extension of a traffic stop to conduct a dog sniff violates the Fourth Amendment [75]. A routine traffic stop, the Court held, is more like a Terry stop than an arrest, and its duration is defined by the "mission" of the stop — addressing the traffic violation and attending to safety concerns [75]. A seizure justified only by a traffic violation becomes unlawful if prolonged beyond the time reasonably required to complete that mission [75].

Rodriguez gave defense attorneys a powerful suppression tool, but its application has been uneven. Courts have wrestled with what constitutes "prolongation," whether de minimis extensions require suppression, and how the rule interacts with the issuance of a ticket. The decision remains a fixture of traffic-stop litigation, even as the doctrine's edges continue to be litigated.

The Illinois Pretrial Fairness Act

On September 18, 2023, Illinois became the first state in the country to completely eliminate cash bail [76]. The Pretrial Fairness Act replaced money bonds with a system in which judges make individualized "in or out" decisions about pretrial release [76]. The law was designed to prevent people from being detained before trial simply because they cannot afford to post bail [76].

The Act has proven contentious [77]. Opponents argue it limits judicial discretion and risks releasing dangerous defendants [77]; proponents counter that the prior system criminalized poverty and produced no meaningful public safety benefit [77]. The law's implementation has been watched closely by reformers in other states considering similar measures [77]. Early data suggests pretrial detention populations have declined, though the long-term effects on case outcomes and public safety remain to be studied [77].

Competency Restoration Reform

The competency restoration system — which holds defendants found incompetent to stand trial until they can be restored — has become a bottleneck in criminal courts. In New York, defendants caught in the system are commonly called "730s," referring to the state's Criminal Procedure Law Section 730 [78]. Nearly half of these defendants had been homeless in the year before their arrest, and 45 percent had 15 or more prior arrests [78]. These figures reveal a system that often functions less as a path to adjudication than as a revolving door for people with severe mental illness and no access to community treatment.

The National Center for State Courts has convened webinars on "reimagining competency restoration," exploring alternatives such as dismissal with community treatment and diversion programs that avoid the competency process entirely [78]. The reform challenge is fundamentally a resource problem: restoration requires psychiatric beds, clinicians, and housing that most jurisdictions lack.

Batson and the End of Peremptory Strikes

January 1, 2022, the most radical change to the American jury in at least thirty-five years occurred in Arizona: peremptory strikes were eliminated entirely [79]. The state abolished a tool that had been a feature of trial adjudication since the founding. Arizona was not alone. California, Connecticut, New Jersey, and Washington overhauled their approaches to peremptory strikes in the span of a few years, and other states are considering similar reforms [79].

These reforms go beyond Batson v. Kentucky's prohibition on race- and sex-based strikes. They proscribe justifications that disproportionately exclude protected classes even when the proponent's subjective motivation is facially neutral [79]. Nearly one-fifth of the country's population now lives in a jurisdiction where Batson's familiar three-part framework no longer governs [79]. The shift reflects a growing recognition that peremptory strikes have been used to exclude jurors based on race, and that Batson's subjective-intent test has proven inadequate to prevent it.

What to Watch

Several developments will shape the next phase of these reforms. The U.S. Sentencing Commission's ability to issue compassionate release guidelines depends on whether it regains a quorum [70]. The long-term effects of Illinois's Pretrial Fairness Act will influence whether other states follow [76]. The tension between Miller's promise and Jones's narrowing will continue to play out in state courts applying juvenile sentencing laws [73]. And the expansion of Arizona's no-peremptory-strikes model to other jurisdictions could fundamentally alter how juries are selected [79].

What unites these disparate reforms is a common recognition: the criminal justice system's legitimacy depends not only on whether it convicts the guilty, but on whether it treats the accused fairly at every stage — from the lineup to the jury box to the sentencing hearing. The changes underway are incomplete, uneven, and contested. But they represent the most sustained period of structural reform in American criminal defense in a generation.