Trial by Machine

Abstract

This Article explores the rise of “machines” in criminal adjudication. Human witnesses now often give way to gadgets and interpretive software, juries’ complex judgments about moral blameworthiness give way to mechanical proxies for criminality, and judges’ complex judgments give way to sentencing guidelines and actuarial instruments. Although mechanization holds much promise for enhancing objectivity and accuracy in criminal justice, that promise remains unrealized because of the uneven, unsystematic manner in which mechanized justice has been developed and deployed. The current landscape of mechanized proof, liability, and punishment suffers from predictable but underscrutinized automation pathologies: hidden subjectivities and errors in “black box” processes; distorted decision-making through oversimplified — and often dramatically inaccurate — proxies for blameworthiness; the compromise of values protected by human safety valves, such as dignity, equity, and mercy; and even too little mechanization where machines might be a powerful debiasing tool but where little political incentive exists for its development or deployment. For example, the state promotes the objectivity of interpretive DNA software that typically renders match statistics more inculpatory, but lionizes the subjective human judgment of its fingerprint and toolmark analysts, whose grandiose claims of identity might be diluted by such software. Likewise, the state attacks the polygraph as an unreliable lie detector at trial, where results are typically offered only by defendants, but routinely wields them in probation revocation hearings, capitalizing in that context on their cultural status as “truth machines.” The Article ultimately proposes a systems approach – “trial by cyborg” – that safeguards against automation pathologies while interrogating conspicuous absences in mechanization through “equitable surveillance” and other means.

Keywords: machine, algorithm, forensic evidence, DNA