07:48, July 30 58 0 abajournal.com

2019-07-30 07:48:06
Trade secret privilege is bad for criminal justice

Jason Tashea

Jason Tashea. Photo by Saverio Truglia.

In a cold-case murder trial, software generated the main evidence against Martell Chubbs.

With a decades-old DNA sample from the crime scene, prosecutors asked a private company to calculate the likelihood that Chubbs’ DNA was found in the evidence. The somewhat novel approach—called probabilistic genotyping—used proprietary software that brings together a mix of biology, computer science and statistics.

With everything riding on this software’s analysis, Chubbs successfully argued at trial in 2013 in California state court that he had a right to confront the software used by the state. Under protective order, the trial court judge agreed that the defense could assess the source code.

However, the developer of the software refused to comply, arguing that the code was a trade secret and privileged. On appeal, a state appeals court decided to keep the code hidden by raising the burden the defense needed to meet—from a showing of good cause to “a particularized showing” that the information is “necessary” to the defense—to access the software. The court also allowed the company to otherwise keep information from the defense hidden, regardless if a protective order was offered.

Unable to confront the evidence against him, Chubbs pleaded no contest in 2016 and currently sits in prison, sentenced to seven years and eight months.

While most pronounced with DNA technology, favoring corporate trade secrets over defendant’s procedural rights has been applied to software and technology built by private companies, such as breathalyzers, algorithmic risk assessments and cell-site simulators, a technology used by police to pinpoint the location of a cellphone.

As technology becomes more central to evidence gathering and defendant profiling, courts must maintain open and transparent processes that don’t black box evidence used to detain, convict and sentence defendants. To do otherwise subverts a fair and open criminal justice system.

The application of the trade secret privilege in criminal proceedings looks similar to its civil counterpart. In essence, if the release of a trade secret would do substantial financial harm then the court can either decline to share the information with the opposing party or allow the opposing party access to the information under a protective or sealed order.

While this has been a widely accepted practice in civil law since the mid-20th century, the application of trade secret privilege in a criminal proceeding is largely a 21st century phenomenon. At least in theory, its application was meant to be limited.

For example, the use of trade secret privilege in DNA evidence was endorsed by the ABA Criminal Justice Standards Committee in 2007. DNA Evidence, Third Edition said that a trade secret privilege in a criminal proceeding should be allowed so long as it doesn’t conceal fraud, interfere with a party’s ability to challenge admissibility or reliability, conflict with other DNA evidence standards “or otherwise work an injustice.”

In a comment, the committee says the privilege is qualified and not absolute and should give way to public interests. But, that doesn’t seem to be what is happening.

Developers of these tools argue that trade secrets are important to protect intellectual property and violating it can lead to lost or stolen revenue. As much as this may be true, invoking trade secrets can also be used to obfuscate a subpar product and force purchasers, like police and prosecutors, to rely more on ad copy than science.

Regardless, state courts in New York, Ohio, Pennsylvania and Washington have all denied defense motions to access forensic software source code citing trade secret privilege, notes incoming University of California at Berkeley School of Law professor Rebecca Wexler in a Stanford Law Review article.

This trend expands beyond courtroom fights over privilege. In a 2013 Wisconsin Supreme Court case, the justices accepted on its face that privately held algorithmic risk assessment software used in sentencing was a trade secret and kept the source code out of reach of the defendant without a fight over privilege. In other instances, developers of a technology used to find cellphone locations—often referred to as “stingrays”—had prosecutors and police around the country sign nondisclosure agreements that hid the workings of the tool from the public, defendants and even judges.

Favoring corporate security over defendant’s due process creates real harms. During the evidentiary stage of Chubbs, the defense’s DNA expert could not defend against the software’s results without the source code, saying, “access to this code is the only satisfactory and professionally recommended way to fully consider the validity of the [software’s] analysis,” according to the unpublished appeals court opinion.

Siding against the defense, the appeals court and the vendor wanted Chubbs to rely on validation studies produced by the company or other researchers. In regard to genotyping software, these studies are done almost entirely in-house, which raises questions around their neutrality. This is particularly troubling considering that the same DNA sample can produce different outputs when run through different genotyping software.

This trade secret trend also tramples on constitutional rights. As the trial judge in Chubbs determined, the defendant’s right to confront and cross-examine witnesses required the source code to be available. The appeals court ultimately reasoned that the Sixth Amendment right to confront a witness is not conferred to pretrial discovery hearings. However, without making the code available during the pretrial stage, the right to confrontation is curtailed at trial.

It should be noted, however, deference is not universally being given to technology developers.

In New York, for example, a federal trial judge in 2017 allowed a defendant and a media organization access to the source code of a DNA analysis software similar to the kind used in Chubbs. However, this case differentiates itself because the software in question was developed and held by a state agency—not a private company. In addition, the state had discontinued the use of the software by the time of the decision.

While some judges put a check on an abuse of trade secret privilege, enough are getting it wrong to be concerned. The message that profits are more important than a defendant’s due process is the wrong one to send. This is especially true when considering that evidentiary rules already provide checks on defendants engaging in discovery abuses.

When trade secret privilege is legitimately invoked, protective and sealed orders should be used liberally instead of foreclosing the defendant’s ability to put forth their best defense. However, as the National Academies of Sciences noted in a 1992 report on DNA technology, protective orders should not be so broad as to encompass scientific information used in the case, which “should be open to widespread scientific scrutiny.”

There is a wave of new technologies crashing down on the criminal justice system. With cash strapped agencies around the country unable to build their own tools, reliance of private companies will only grow—as will requests for trade secret privilege.

While innovation and new developments are important to cautiously embrace in the criminal justice system, the price of progress cannot leave defendants in the dark.

Jason Tashea is the author of the Law Scribbler column and a legal affairs writer for the ABA Journal. Follow him on Twitter @LawScribbler.

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