An essential right within the criminal justice system is that when a person is accused of a crime, he has the right to directly confront his accusers and any evidence against him. This right is guaranteed by the 6th Amendment to the U.S. Constitution, and it applies to witness testimony as well as other forms of evidence.
However, several courts in at least four states – including Florida – have reportedly been using DNA evidence processed by a computer coding program, but refusing to turn that coding information over to defense lawyers. These states are arguably denying critical evidence to individuals accused of serious crimes in violation of their constitutional rights.
Specifically at issue is the source coding. The courts who have denied access to this information say they have released the underlying mathematical model and methodology, and the company did provide defense experts an opportunity to observe the process. That might sound fair, but here’s the problem: We know that coding errors have increased the likelihood of a false DNA match, which could undoubtedly lead to an erroneous criminal conviction. And even when audits of the technology are conducted by defense experts, if those experts don’t have access to the real source coding, the only thing they will be able to determine is how those results bear out in controlled lab environments.
What that means is that we have a potentially serious flaw in a cardinal piece of evidence that could threaten someone’s reputation, livelihood and freedom. And worse, Miami criminal defense lawyers are being denied access to independently review this crucial evidence.
As a recent analysis by Slate.com writer Rebecca Wexler pointed out, “secret code” is not unique to the courts. It’s present in medical devices, airplanes, elevators and motor vehicles and DUI breathalyzers. Major concerns have been raised about its use in these sectors as well. For example, automaker Volkswagen recently conceded it used secret software to sidestep fuel emissions tests for 11 million diesel cars. The impact was substantial: Smog output that was 40 times the legal limit.
When we translate those kinds of injustices to a criminal courtroom, there is grave risk that a person’s life could be utterly ruined based on faulty source code they aren’t even allowed to properly examine and challenge.
One example outlined in California involved a defendant facing charges for a cold case homicide committed in 1977. The only apparent evidence against him was a DNA “hit” obtained from a proprietary computer program. The defendant requested to inspect the source code of that software in order to effectively challenge its accuracy. Specifically, he wanted to know whether the code properly incorporates established scientific procedures in the way it matches DNA, and if it functions the way manufacturers promised. However, the manufacturer opposed this motion, arguing it could threaten its business if the attorney stole the code and duplicated it. Never mind that doing so would be a crime in itself, and there was no indication the lawyer had any such intention. Yet, the California court denied the defense’s motion in this case. According to the court’s ruling, the defendant could question the witness, just not the essential tool upon which the witness relied upon.
A similar case in Florida was the 2008 case of State v. Bastos, before the Third District Court of Appeal. This was a DUI case against two defendants who sought access to the source code for the Intoxylizer 5000. This is the breathalyzer test upon which many local and state law enforcement rely on in DUI cases. They wanted to see if the computer analysis worked as manufacturers promised. But the trial court denied the defense’s requests, and the appellate court affirmed that decision.
Although we do know government regulators conduct independent validation tests for some of these types of programs or devices, this kind of “black box” testing can’t necessarily audit the code in these devices. Transparency is key. It is not that our criminal defense lawyers don’t believe this technology is effective or valuable. But when it is central to the prosecution’s case, it deserves adequate scrutiny. Hiring an aggressive criminal defense attorney can be key to your right to challenge this type of evidence in court. As a Board Certified Specialist in Criminal Trial Law, I stand ready to fight for my clients’ rights to examine all the evidence against them, including the source codes of these devices or programs.
Contact the Miami criminal defense lawyers at Jacobs Keeley at (305) 358-7991 for a confidential consultation on your pending criminal matter.
Secret computer code is used to help send defendants to jail, Oct. 8, 2015, By Debra Cassens Weiss, ABA Journal
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