A 'Source' of Error: Computer Code, Criminal Defendants, and the Constitution

50 Pages Posted: 27 Dec 2015 Last revised: 25 Apr 2017

See all articles by Christian F. Chessman

Christian F. Chessman

University of California, Berkeley, School of Law, Students

Date Written: March 18, 2016

Abstract

Evidence created by computer programs dominates modern criminal trials. From DNA to fingerprints to facial recognition evidence, criminal courts are confronting a deluge of evidence that is generated by computer programs. In a worrying trend, a growing number of courts have insulated this evidence from adversarial testing by preventing defendants from accessing the source code that governs the computer programs. This Note argues that defendants are entitled to view, test, and critique the source code of computer programs that produce evidence offered at trial by the prosecution. To do so, this Note draws on three areas of law: the Confrontation Clause, the Due Process Clause, and Daubert and its progeny. While courts and commentators have grappled with specific computer programs in specific criminal contexts, this Note represents the first attempt to justify the systematic disclosure of source code by reference to the structural features of computer programs.

Keywords: source code, confrontation clause, due process, Daubert, Frye, computer program, reliability, trade secret

JEL Classification: K14, K41

Suggested Citation

Chessman, Christian, A 'Source' of Error: Computer Code, Criminal Defendants, and the Constitution (March 18, 2016). 105 Calif. L. Rev. 179 (2017), Available at SSRN: https://ssrn.com/abstract=2707101 or http://dx.doi.org/10.2139/ssrn.2707101

Christian Chessman (Contact Author)

University of California, Berkeley, School of Law, Students ( email )

Berkeley, CA
United States
5613182859 (Phone)

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