Technology, search costs and the standard for effective counsel
© Greg Nash

The Supreme Court has interpreted the Sixth Amendment to the Constitution to entitle criminal defendants to effective assistance of legal counsel. A decision by the Supreme Court — a unanimous per curiam opinion, indicating that the justices thought the issues in the case were clear — this week in Maryland v. Kulbicki sheds light on what constitutes "effective" assistance in light of evolving science and technology. First, the court's opinion reminds us that the scientific validity of evidence adduced at trial is to be judged according to standards prevailing at the time of the trial, not at the time the effectiveness of counsel is determined. Second, and more importantly, the court's opinion emphasizes how the knowledge that counsel is expected to acquire depends upon search costs, which in turn depend upon the technology supporting searches. Thus, counsel's failure to identify a particular study that might have benefited his client at trial 20 years ago is to be judged by the ease by which searches could be conducted 20 years ago. In the years since, however, search costs have fallen precipitously and so, by implication, our expectations for whether legal assistance is constitutionally "effective" may have grown exponentially as well.


The defendant in Kulbicki, James Kulbicki, was convicted of first-degree murder in 1995, based in part on evidence presented to the jury that portions of a bullet found in the victim's head were of the same composition as portions of a bullet found in the defendant's truck. The jury heard evidence of a scientific analysis — Comparative Bullet Level Analysis (CBLA) — that posited that bullet fragments of sufficiently similar composition likely hailed from the same bullet, or at least the same batch of bullets. At the time, CBLA was well accepted by courts, but in the years following the theory, fell in disfavor. It was in 2006 that Kulbicki added to his post-conviction petition the claim that his trial lawyers were constitutionally ineffective for having failed to challenge the prosecution's reliance on CBLA.

In rejecting Kulbicki's ineffective assistance of counsel argument, the Supreme Court first emphasized earlier holdings to the effect that lawyers' effectiveness are to be assessed under the attendant circumstances at the time the lawyers took their actions. Since judicial acceptance of CBLA was widespread at the time of the trial, Kulbicki's trial lawyers did not act ineffectively by failing to challenge CBLA's validity.

Second, the court considered Kulbicki's argument that his lawyers acted ineffectively to identify, and then to rely upon, a 1991 study that drew in some question — though it ultimately still as a general matter endorsed — CBLA. After emphasizing that the 1991 study actually lent support to CBLA, the court asserted that Kulbicki's lawyers could not be faulted for failing to identify the 1991 study even if that study actually debunked CBLA. The court explained that "there is no reason to believe that a diligent search would even have discovered the supposedly crucial report." In particular, the court assessed the search mechanisms the lawyers would have employed at the time of the trial: "[I]n an era of card catalogues, not a worldwide web, what efforts would counsel have had to expend to find the compilation? And had they found it, would counsel really have combed through the entire compilation, and have identified the one (of many) findings in one of the reports [that assailed CBLA]?"

The court thus directed that the search challenges facing the lawyers be assessed in light of the conditions at the time. By implication, the constitutional effectiveness of lawyers today in challenging scientific evidence should instead be judged by the search conditions prevalent today. But of course search costs have come down considerably over the past few decades, and if anything, the trend is likely to increase over time. In short, it seems that under the court's rule, lawyers should be expected to do more searching (at a lower cost) today than in years gone by. This may be the most important lesson for today's practitioners from the decision in Kulbicki.

Nash is professor of law and David J. Bederman Research Professor (2014-15) at Emory University School of Law. He specializes in the study of courts and judges, federal courts and federal jurisdiction, legislation and regulation, and environmental law. Follow him on Twitter @JonathanRNash.