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Abstract. The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, machine learning and other computer systems guide outcomes. Widespread debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse to disclose that information to criminal defendants or their attorneys. The introduction of intellectual property claims into the criminal justice system raises undertheorized tensions between life, liberty, and property interests.
This Article offers the first wide-ranging account of trade secret evidence in criminal cases and develops a framework to address the problems that result. In sharp contrast to the general view among trial courts, legislatures, and scholars alike, this Article argues that trade secrets should not be privileged in criminal proceedings. A criminal trade secret privilege is ahistorical, harmful to defendants, and unnecessary to protect the interests of the secret holder. Meanwhile, compared to substantive trade secret law, the privilege overprotects intellectual property. Further, privileging trade secrets in criminal proceedings fails to serve the theoretical purposes behind either trade secret law or privilege law. The trade secret inquiry sheds new light on how evidence rules do, and should, function differently in civil and criminal cases.
Introduction
A death penalty defendant in Pennsylvania state court was denied access to the source code for a forensic software program that generated the critical evidence against him; the program's commercial vendor argued that the code is a trade secret.1 In a federal court in Texas, the federal government claimed that trade secret interests should shield details about how a cybercrime investigative software program operates, even though the information was necessary to determine whether warrantless use of the tool had violated the Fourth Amendment.2 And in a Wisconsin case, the state supreme court rejected a defendant's claim that he had a right to scrutinize alleged trade secrets in an algorithmic risk assessment instrument used to sentence him.3 The court reasoned that no due process violation had occurred in part because the judge's own access to the secrets was equally limited.4
Cases like these herald a growing trend. Criminal justice decisionmaking is becoming automated. At every stage-policing and investigations, pretrial incarceration, assessing evidence of...