In this article, Barry Pollack comments on the possible use of NSA collected meta-data by defendants as part of their defense. In South Florida, the lawyer for an accused bank robber has asked a federal judge to order the government to determine if the NSA has phone records which could help exonerate his client. This case could be the first of such requests by defendants who believe the collected data may help them.
"Prosecutors will be proceeding at their own risk if they don’t do their own searches of the classified material. If it is exculpatory, then the conviction will be in jeopardy," Pollack said, citing the 2008 prosecution of Alaska Senator Ted Stevens. Under the "Brady Rule," there is a constitutional obligation for the prosecution to disclose any material evidence favorable to the defendant. "Ultimately, if there is exculpatory material that the government is unwilling to turn over because it’s classified and they’re concerned about the national security ramifications of turning it over," he said, "that could mean they’ll have to decide whether to dismiss or pursue the case."