Trade Secrecy and Innovation in Forensic Technology

49 Pages Posted: 20 Apr 2022 Last revised: 7 Jun 2022

See all articles by Eli Siems

Eli Siems

New York University School of Law

Katherine J. Strandburg

New York University School of Law

Nicholas Vincent

New York University School of Law

Date Written: April 6, 2022

Abstract

Trade secrecy is a major barrier to public scrutiny of probabilistic software tools that are increasingly used at all stages of the criminal system, from policing and investigation through trial and sentencing. Such tools allow prosecutors to leverage imperfect forensic evidence, such as DNA mixtures, smudged fingerprints, and grainy video footage. Probabilistic software tools unavoidably rely on potentially contestable assumptions, parameters, and implementation choices. Judicially recognized trade secrecy in criminal cases impedes scrutiny of these tools by defendants and the public. Previous critics have focused on secrecy’s potential to undermine the integrity and fairness of the criminal justice system, invoking the constitutional constraints of criminal procedure, as well as the traditional accuracy and fairness grounds of evidentiary rules.

This Article takes a complementary perspective, arguing that trade secrecy against court-mandated disclosure is also unlikely to advance the recognized goals of trade secrecy law. There is thus certainly no basis for courts to assume that the social benefits of trade secrecy outweigh the potential for injustice created by withholding information needed for adversarial vetting of the reliability of forensic evidence tools.

Keywords: trade secrets, probabilistic software, probabilistic genotyping, forensic technology, innovation

Suggested Citation

Siems, Eli and Strandburg, Katherine J. and Vincent, Nicholas, Trade Secrecy and Innovation in Forensic Technology (April 6, 2022). Hastings Law Journal, Vol. 73, No. 3, 2022, NYU School of Law, Public Law Research Paper No. 22-22, Available at SSRN: https://ssrn.com/abstract=4077362

Eli Siems

New York University School of Law ( email )

Katherine J. Strandburg (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

Nicholas Vincent

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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