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How does one obtain evidence located outside the United States for a criminal trial? For prosecutors, the answer is an exclusive treaty process: Mutual Legal Assistance Treaties (MLATs). Defendants, on the other hand, may only use an unpredictable, ineffective, non-treaty process: letters rogatory. The result is a selective advantage for law enforcement at the expense of the defendant. Though this imbalance necessarily raises Sixth Amendment Compulsory Process Clause concerns, MLATs have remained largely undisturbed because defendants still have some form of process, albeit a lesser one. But what happens when the letters rogatory process is also closed off to the defendant? When a defendant has no option but to rely on the government to submit an MLAT request on his behalf, can a district court compel the government to do so on behalf of this “zero-option defendant”? Recently, in United States v. McLellan, the First Circuit sought to answer this question. This Comment explores the role of federal courts in protecting the rights of zero-option defendants in the MLAT context. It examines the First Circuit’s reasoning in McLellan and concludes that McLellan suffers from a fundamental misunderstanding of judicial compulsory power in the face of constitutionally-violative acts by the Executive Branch. This Comment proposes that, for zero-option defendants, judicial compulsory power is necessary to prevent the Compulsory Process Clause from becoming a dead letter.

In a recent article published by this journal, Kiel Brennan-Marquez and Stephen E. Henderson argue that replacing human judges with AI would violate the role-reversibility ideal of democratic governance. Unlike human judges, they argue, AI judges are not reciprocally vulnerable to the process and effects of their own decisions. I argue that role-reversibility, though a formal ideal of democratic governance, is in the service of substantive ends that may be independently achieved under AI judges. Thus, although role-reversibility is necessary for democratic governance when human judges are on the job, it may not be so when AI judges replace them. One broader implication for normative evaluation of disruptive technologies follows: formal and substantive ideals that often align must be independently examined in the evaluation of disruptive technologies. This is because these formal and substantive ideals may no longer align under the factual circumstances that come to govern when such technologies are deployed.

A few years ago, we developed the concept of “role-reversibility” in AI governance: the idea that it matters whether a party exercising judgment is reciprocally vulnerable to the effects of judgment. This idea, we argued, supplies a deontic reason to maintain certain spheres of human judgment even if (or when) truly intelligent machines become demonstrably superior in every utilitarian sense. While computer science remains far from that holy grail, generative AI is raging through systems as diverse as healthcare, finance, advertising, law, and academe, making it imperative to further shore up our claim. We do so by situating role-reversibility within the long arc of criminal justice philosophy, from Anaximander to Aristotle to Seneca. Simply put, role-reversibility facilitates mercy. And mercy is both (1) central to the operation of a humane legal system and (2) impossible, even in principle, to automate.