Locked Out Of The Sixth Amendment By Proprietary Forensic Software

from the unconfrontable-witnesses dept

There are all sorts of proprietary code out there, unavailable for inspection and perfectly capable of sending people to prison, as Slate's Rebecca Wexler reports.

Defendant Martell Chubbs currently faces murder charges for a 1977 cold case in which the only evidence against him is a DNA match by a proprietary computer program. Chubbs, who ran a small home-repair business at the time of his arrest, asked to inspect the software’s source code in order to challenge the accuracy of its results. Chubbs sought to determine whether the code properly implements established scientific procedures for DNA matching and if it operates the way its manufacturer claims. But the manufacturer argued that the defense attorney might steal or duplicate the code and cause the company to lose money. The court denied Chubbs’ request, leaving him free to examine the state’s expert witness but not the tool that the witness relied on.

That's a starkly mercenary stance to take. The "trade secret privilege" invoked here basically states that the company's potential loss of income outweighs a person's potential loss of freedom. It also asks for a level of trust it hasn't earned: that the software is as close to infallible as it needs to be. Cross-examination is next to useless when the software itself can't be examined.

Worse, this closed-off software operates in a field where nearly every previous form of "indisputable" evidence has proven to be severely flawed.

Studies have disputed the scientific validity of pattern matching in bite marks, arson, hair and fiber, shaken baby syndrome diagnoses, ballistics, dog-scent lineups, blood spatter evidence, and fingerprint matching. Massachusetts is struggling to handle the fallout from a crime laboratory technician’s forgery of results that tainted evidence in tens of thousands of criminal cases. And the Innocence Project reports that bad forensic science contributed to the wrongful convictions of 47 percent of exonerees.

Everything tied to securing convictions seems to suffer from pervasive flaws compounded by confirmation bias. For four decades, the DOJ presented hair analysis as an unique identifier on par with fingerprints or DNA when it wasn't. A 2014 Inspector General's report found the FBI still hadn't gotten around to correcting forensic lab issues it had pointed out nearly 20 years earlier. This contributed to two decades of "experts" providing testimony that greatly overstated the results of hair analysis. All of this happened in the FBI's closed system, a place outsiders aren't allowed to examine firsthand.

That's the IRL version. The software version is just as suspect. Computers aren't infallible and the people running them definitely aren't. If the software cannot be inspected, the statements of expert witnesses should be considered highly dubious. After all, most expert witnesses representing the government have a vested interest in portraying forensic evidence as bulletproof. Without access to forensic software code, no one will ever be able to prove them wrong.

If a piece of software has the ability to deprive a member of the public of their freedom, its code should be open for inspection by the defense. "Trade secrets" should not take precedence over the public's right to defend themselves in court. Even in the highly unlikely event that Chubb's defense team would have copied the code and destroyed the company's future profits, it would still have the ability to seek redress through the court system. After all, that's the line the government uses when it argues for expanded "good faith exceptions" or warrantless searches and seizures: "Hey, if we screw up, you can always sue."

The judicial system is a remedy for wrongs, both criminal and civil. What it shouldn't be is a protective haven where ridiculous assertions like those made here are used to prevent an accused person from learning more about the evidence being used to convict them.

Filed Under: accuser, code, devices, forensics, lawsuits, sixth amendment, software