When you are accused of a crime, you have a constitutional right to know who is accusing you. When they present evidence against you, you have a right to see the evidence and challenge it.

When new technology comes along, prosecutors will often fight to keep the methodology secret, arguing that the corporations who invent the technology have a right to protect their trade secrets. Yes… prosecutors are arguing that corporate trade secrets and profits are more important than the rights of defendants who, in many cases, are fighting for their freedom.


For some prosecutors, they feel that their job is to get convictions (note: the U.S. Supreme Court has repeatedly admonished prosecutors that their job is to seek justice, not get convictions), and it’s a lot easier to convict someone when they are not able to challenge the evidence being used against them.

In San Diego, a prosecutor is arguing that neither the defendant nor his attorney should be allowed to see the state’s strongest evidence in a murder case – a new method of DNA analysis.

DNA Evidence Is Complicated, and Defendants Have a Right to Challenge It

The San Diego District Attorney says the suspect’s DNA was found on a pair of blood-stained gloves found near the crime scene. The evidence was found using a cutting-edge DNA-analysis tool called STRmix, which was developed by the private company Environmental Science and Research.

STRmix was developed to address a very specific problem – when a biological sample comes from two or more people, identifying the DNA of a single individual becomes very complicated. Scientists have warned for years that this kind of analysis has a lot of potential for error.

In fact, problems with earlier DNA analysis using older technology led to the San Diego murder suspect’s first conviction being thrown out. Now, the prosecution has turned to STRmix to provide better evidence… so it claims.

Are Corporate Profits More Important than Constitutional Rights?

Environmental Science and Research claims that STRmix can accurately identify an individual’s DNA from a mixture of several people’s biological material.

The defense wants to be allowed to examine the technology’s source code, and why wouldn’t they? If no one outside the prosecutor’s office can examine a technology that supposedly produces evidence, who’s to say the evidence isn’t just made up? Why should the defendant – or any of us – believe the technology is accurate?

A Superior Court judge has ruled that the prosecution should hand over the information requested by the defense, but the prosecution is fighting the ruling.

The prosecutor says the software is copyrighted and is protected as a business trade secret. And the city signed a non-disclosure agreement when it bought the software.

So, this company wants to profit from law enforcement and criminal prosecutions, but it wants to be exempt from any constitutional requirements that may affect its business model. And the prosecutor wants to hide behind the company’s trade-secrets claims to protect its new evidence-producing gadget from outside scrutiny.

Breathalyzer Companies Already Lost this Fight, Didn’t They?

This is not the first time prosecutors and a private business have tried to prevent defendants from examining high-tech evidence. The courts have more than once ordered law enforcement officials to share the source code for breath tests used to determine a DUI suspect’s blood alcohol content.

In 2009, a Florida appeals court upheld a lower court’s decision that the manufacturer of a breath test had to allow the defense to examine any technology that produced evidence used against the defendant.

In a similar case, the Minnesota Supreme Court ordered a breath test manufacturer to turn over the source code to the defense in 2007.

In both cases, courts found that a business’s desire to protect trade secrets is not a legitimate reason to deny a defendant the right to a fair trial.

What’s the Answer?

Prosecutors should never find themselves arguing against the disclosure of key evidence in a criminal case, and there is no scenario I can imagine where a prosecutor can ethically: 1) Make pre-emptive agreements with a private company to violate a defendant’s constitutional rights; or 2) Take the position in court that a corporation’s right to profits is more important than a defendant’s constitutional rights.

Here are some thoughts:

  • Companies seeking to market technology to law enforcement already know that the information will have to be disclosed – they have attorneys who understand criminal procedure and who can read caselaw;
  • Agreements not to disclose in the context of a criminal case should be void as against public policy;
  • Neither prosecutors nor private corporations can bypass a defendant’s constitutional rights through a private agreement;
  • If a private company will not license their technology without a confidentiality agreement, use established technology, understanding that it will be subject to scrutiny when you are using it to put a person in prison; or
  • Use the new technology without a confidentiality agreement, understanding that it will be subject to scrutiny when you are using it to put a person in prison.

The underlying argument for not releasing the information, both in this case and the breathalyzer cases, is that the company has a right to protect their profits.

A corporation’s right to make profits never takes precedence over a defendant’s constitutional rights – just take a moment to imagine what that criminal “justice” system would look like…

SC Criminal Defense Lawyers in Myrtle Beach, Conway, Charleston, and Columbia

When you are charged with a crime, your criminal defense attorney at Coastal Law will analyze and study any evidence that the state intends to use against you, and we have access to a broad range of experts to assist you in preparing your defense. Call now at (843) 488-5000 or fill out our online form to find out how we can help.

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