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Research by two faculty members sparks legislation to help level the playing field
10 Berkeley Law Transcript Spring 2020
Pushing Toward Forensic Fairness A federal bill that would make forensic algorithms more transparent for criminal defendants has strong ties to two Berkeley Law professors, Rebecca Wexler and Andrea Roth. Introduced by California Rep. Mark Takano, the bill would amend the Federal Rules of Evidence so that proprietary algorithm owners can’t use the trade secret privilege to avoid sharing information about their program with defendants. It also would guarantee defendants access to a working software version, with the data needed to reproduce the results presented in court, and create a standards and testing program for forensic algorithms. The spark for the bill came from Wexler’s 2015 Slate op-ed “Convicted by Code,” which outlined how some criminal defendants were being denied access to the guts of programs used to make a DNA match or pinpoint their location. Algorithm owners and developers, which sometimes are governmental entities, have successfully argued that code details are trade secrets that must be shielded from competitors—and from defense attorneys. “It just struck me as wrong,” says Wexler, who in 2018 published another paper expanding her argument and asserting that the trade secret privilege should not stop disclosure in criminal cases. Errors in algorithms—or inadvertent coding that can amplify racial and gender bias—are well-documented. For Wexler, it’s also vital that defendants
JIM BLOCK
CSI BERKELEY: Professors and bill catalysts Andrea Roth (left) and Rebecca Wexler.
