SMU Law Review Forum

SMU Law Review Forum


Roger Rabbit was falsely accused of murdering Marvin Acme, the owner of Toontown, after photos revealed Acme’s alleged affair with Roger’s wife. A few snapshots, while seemingly harmless, brought a 104-minute journey into uncovering the truth and scandal behind the murder and proving Roger’s innocence. And while the camera that took the photos was not necessarily a criminal justice technology that framed Roger Rabbit, there are real-life cases where a DNA software or a breathalyzer has negatively affected many defendants. Despite the proven usefulness of these technologies, it is not a perfect method in accusing and convicting defendants. The criminal justice system, however, might disagree. Yet, there are many occasions where technology has wrongfully accused an individual, and its lack of source code transparency has created a roadblock for defense counsel.

That roadblock is known as the trade secret privilege. When defense counsel seeks access to source code information to determine the accuracy and reliability of a technology’s data outputs, the owners of these technologies claim “trade secret.” By claiming that privilege, trade secret holders are exercising their intellectual property right to refuse disclosure of their technologies’ secret information. But at what cost?

In early 2021, California Representative Mark Takano gave criminal defendants a glimpse of what the end of this seemingly absolute privilege could look like. That hopeful future clothes itself in the form of H.R. 2438, which would regulate admissibility of trade secret information and place a ban on claiming the privilege in criminal proceedings. And the bill’s future may be solidified if Congress chooses to pass this bill, which it should. This Comment argues the lives and constitutional rights of defendants outweigh the protection of intellectual property in the criminal justice context. By evaluating the policy reasons favoring criminal defendants and considering the importance of trade secret rights, this Comment argues why H.R. 2438 should be passed to keep criminal justice technologies accountable and to ensure the liberty of innocent individuals.

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