Academic ArticleFebruary 21 2017

Life, Liberty, and Trade Secrets: Intellectual Property in the Criminal Justice System

Rebecca Wexler

D&S lawyer-in-residence Rebecca Wexler provides an analysis on trade secrecy in the criminal justice system. Abstract is below:

From policing to evidence to parole, data-driven algorithmic systems and other automated software programs are being adopted throughout the criminal justice system. The developers of these technologies often claim that the details about how the programs work are trade secrets and, as a result, cannot be disclosed in criminal cases. This Article turns to evidence law to examine the conflict between transparency and trade secrecy in the criminal justice system. It is the first comprehensive account of trade secret evidence in criminal cases. I argue that recognizing a trade secrets evidentiary privilege in criminal proceedings is harmful, ahistorical, and unnecessary. Withholding information from the accused because it is a trade secret mischaracterizes due process as a business competition.