If you are a judge in Minnesota, you might be wishing that this article was written years ago. Defense counsel access to source code plagued the Minnesota courts (state and federal) for several years. The result was many law enforcement agencies switched to preferring blood tests for which lab testing availability was not prepared. Prior to the source code litigation, blood tests were reasonably rare. Now there are nightly calls to judges seeking search warrants for blood tests.
Natalie Ram (University of Baltimore – School of Law) has posted Innovating Criminal Justice (Northwestern University Law Review, Forthcoming) on SSRN.
Here is the abstract:
From secret stingray devices that can pinpoint a suspect’s location to source code secrecy surrounding alcohol breath test machines, advanced forensic DNA analysis tools, and recidivism risk statistic software, the use of privately developed criminal justice technologies is growing. So too is a concomitant pattern of trade secret assertion surrounding those technologies. This Article charts the role of private law secrecy in shielding criminal justice activities, demonstrating that such secrecy is pervasive, problematic, and yet ultimately unnecessary for the production of well-designed criminal justice tools.
In so doing, this Article makes three contributions to the existing literature. First, the Article establishes that private secrecy tools — trade secrets foremost among them — now permeate American criminal justice, shielding privately developed criminal justice technologies from vigorous cross-examination and review. Second, the Article argues that private law secrecy surrounding the inner workings or even the existence of these criminal justice technologies imposes significant practical and potentially constitutional costs on individual defendants, the criminal justice system, and the development of well-designed criminal justice technology more broadly. Third, the Article brings the extensive literature on innovation policy to bear on the production of privately developed criminal justice technologies, demonstrating that trade secrecy is not essential to either the existence or operation of those technologies. The Article proposes alternative innovation policies that the government, as both a funder of research and the primary purchaser of criminal justice technologies, is uniquely well positioned to implement.