Melanson Law Office P.C. Dec. 15, 2015

It seems like technology is everywhere we turn. Sometimes this is a good thing, and other times it can have serious negative effects.

Person typing on a keyboard in a dark roomThere is secret code in our criminal justice system. But courts are refusing to publish the source code for forensic software, making it impossible for third parties to inspect—even when that code has enormous effects on individuals accused and found guilty of serious crimes.

The New York Times argued that a lack of oversight of scoring determinations or a “technological due process” may frustrate equal treatment under law if the government continues to use this uncheck programming in criminal cases. In fact, in most U.S. jurisdictions you have no right to inspect it.

Defendants have asked to inspect software coding to determine if it properly implements established scientific procedures for DNA matching and to see if it operates the way its manufacturer claims. However, manufacturers argue that defense attorneys might steal or duplicate the code, causing the company to lose money. A court in California recently denied such a request, only allowing the defendant’s attorney to examine the state’s expert witness but not the tool upon which that witness relied. Courts in Pennsylvania, North Carolina, Florida, and elsewhere have made similar rulings.

Evolving technologies are helpful to law enforcement to catch and convict criminals, but they are also an aid to exonerate the innocent. Private companies’ proprietary software can dilute the trust placed in investigative and forensic devices. Inspecting the software isn’t just good for defendants, it is good for the entire criminal justice system to give transparency to the process.Curtailing a defendant’s ability to cross-examine forensic evidence is not fair and creates the opportunity for bad science which can undermine the criminal justice system.

For example, when defense experts identified a bug in breathalyzer software, the Minnesota Supreme Court barred the affected test from evidence in all future trials. In addition, three justices argued to admit evidence of additional alleged code defects so that defendants could challenge the credibility of future tests.

Eliminating errors from code has proven to be so difficult that experts have endorsed openness to public scrutiny as the surest way to keep software secure. However, forensic device manufacturers, which sell exclusively to government crime labs, may lack motivation to conduct the type of strenuous quality testing that is required.

Cross-examination can help to protect against error—and even fraud—in forensic science and tech. But for that “legal engine” to work, defendants need to know the bases of state claims.

The United States Supreme Court long ago recognized transparency in criminal trials helps to safeguard public trust in their fairness and legitimacy. Criminal defendants facing incarceration or death should have a right to inspect the secret code in the devices used to convict them.

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