Artificial intelligence (AI) is increasingly woven into every part of human existence, and it has quickly been adopted by many attorneys as a new tool that they can use to research cases, organize information and even prepare documents or arguments. There’s nothing inherently wrong with that – but attorneys are still responsible for checking every fact, reference and argument before submitting arguments and filings to the court.
It doesn’t always work that way, however. For example, a New Mexico defense attorney was recently penalized after he submitted an appeal in a murder case that had been enhanced via ChatGPT. The brief included fabricated testimony, nonexistent witnesses and other inaccuracies – all of which escaped the attorney’s notice. Similar problems have begun occurring so often that one justice called the issue of misused AI an “epidemic.”
When do AI mistakes become ineffective assistance of counsel?
Not every mistake (AI-generated or not) by a criminal defense attorney rises to the level of ineffective assistance of counsel. Generally speaking, you would still have to show that your attorney’s performance dipped below the expected standard of care from a reasonably capable attorney and that their actions most likely harmed your case.
Common AI-related problems include:
- Citing cases, testimony or evidence that does not exist (AI “hallucinations”)
- Misstating what a court decision says
- Overlooking important information in the record
- Failing to raise a valid defense or appellate issue
- Allowing a filing deadline to expire
- Giving a client incorrect advice about a plea
The seriousness of the mistake matters. A fabricated citation that has no effect on the court’s decision may not justify relief. A false summary that causes the court to reject a strong argument to suppress evidence could be another matter entirely.
AI can be useful, but it is no substitute for experience and skill, and it has dangerous flaws. If you believe your previous attorney’s use of AI led to a negative outcome at your plea, trial or appeal, it may be time to speak to a new attorney who handles post-conviction relief. They can examine the original record and the prior attorney’s work.