There is a persistent underlying flaw in the criminal justice system, stemming from unvalidated forensic science cloaked in intellectual property. Not only does this pose a risk when forensic evidence is a key factor in criminal convictions, but it also reveals how confidential forensic technology could violate defendants’ constitutional rights.
Forensic analysis software, used to generate evidence in criminal trial proceedings, frequently contains closed source code. Such proprietary software prevents the scientific community, the public, juries, attorneys, and defendants from accessing the fundamental methods — or potential errors therein — that can ultimately influence verdicts. This creates a pathway for individuals to be wrongly convicted as a result of jurors being swayed by flawed evidence disguised as good science.
An excellent example is the case of United States v. Ellis, in which DNA was the key evidence used against the defendant accused of illegal firearm possession. The police forensic lab found the DNA analysis inconclusive, prompting further analysis by third-party-owned software. With multiple hypotheses and test variations run on the sample, the prosecution relied on the result of one particular analysis based on the assumption that the defendant was one of four possible contributors to the DNA sample.
When Mr. Ellis’ attorney requested access to the source code, “…the government refused to disclose it, arguing that the information is protected by trade secrets.”
In response, the Electronic Frontier Foundation (EFF) and American Civil Liberties Union of Pennsylvania filed an amicus with the United States District Court of the Western District of Pennsylvania, outlining the inconsistency between closed source code, the defendants’ Sixth Amendment rights, and the right of the public to oversee the criminal trial.
“Source code, and other aspects of forensic software programs used in a criminal prosecution, must be disclosed in order to ensure that innocent people do not end up behind bars,” said the EFF. “Or worse — on death row.”
While it is understandable that developers of forensic software wish to protect their intellectual property, it raises a fundamental question: should IP be protected at the expense of civil rights? To protect the innocent, maintain public oversight, and ensure the advancement of forensic science practices, the curtain must be pulled back on protected methodologies. Arguably, the benefits of doing so would lead to fairer trials and greater trust in the scientific tools utilized within the criminal justice system.