[nickodell]

>My prediction: this firm will probably try to get removed from the case, rather than open source their shitty code.

That isn't necessarily their choice. The prosecutors will make the decision about whether to withdraw the DNA evidence. They probably won't, given that they would need to give the defendant a new trial, which could lead to an accused murderer getting off. A bad look for any prosecutor.

More to the point, if the firm withdraws from any case where their credibility is questioned, what does that say to law enforcement agencies who are thinking about using their software?

[ahepp]

My understanding is that (some) law enforcement agencies have been more than happy to drop cases rather than subject investigative tools to proper scrutiny[0]. They have no qualms resorting to "parallel construction"[1], and simply using the inadmissible (sometimes illegal) evidence to find admissible evidence.

[0] https://arstechnica.com/tech-policy/2015/04/fbi-would-rather...

[1] https://en.wikipedia.org/wiki/Parallel_construction

[nickodell]

Stingrays are more useful as an investigative tool than an evidentiary tool. DNA is the other way around.

[gidan]

That would be implying that the prosecutor would prefer taking the life of an innocent rather than having it hurt his career, making the prosecutor kind of a criminal.

[melq]

>making the prosecutor kind of a criminal.

Never met a lawyer before huh?

Jokes aside, prosecutors pushing through cases they know to be unsound isn't exactly uncommon. Many prosecutors are more concerned with their conviction rates than they are in justice, because that's what they are measured and rewarded by.

[rtx]

I often hear this, who is rewarding them for high conviction rate.

[vkou]

Voters, because when it comes to issues of criminal justice, crowds are rarely paragons of sober temperance and restraint.

[jabits]

I think you are wrong and that most prosecutors want to do the right thing, like most working people

[JakeTheAndroid]

"Right" and "wrong" are dependent upon the system and how it rewards you.I would agree that most prosecutors what to serve justice for malfeasance that has been committed. That's different than whether a case is the "right" or "wrong" one to take.

If a case seems unclear, and you could spend years working on a conviction that will ultimately fall through, that hurts your ability to do justice for more readily winnable cases. You have to spend the time building a case, do all the paperwork, go to trial, etc. That's opportunity cost. So spending that on a case you have 10% chance of winning just isn't a good use of time. Add that to the fact that conviction rate is a metric used to quantify skill, you're rewarded for serving justice successfully. And that then dictates how much money you can get which can help fund enforcing justice.

I believe you're looking at the moral right/wrong, and I don't believe that is the same right/wrong being discussed in terms of how lawyers often choose cases. At the end of the day, lawyers need work and they get that mostly through word of mouth and reputation. You don't really get either of those when you lose cases.

[devlopr]

You're version of the right thing and the prosecutors version might not align.

The right thing for them is to put as many criminals behind bars. They review cases and pick ones they can win. They will attack and find unrelated weak points in your character to win. They believe they are doing the right thing and will use whatever they can legally against you. You being innocent and going to court is means someone made a mistake. To confess to a mistake loses you credibility, to confess to an ongoing process mistake could open up other cases where dangerous people could be set free.

Is that your version of the right thing?

[michaelmrose]

It is trial if wrong to convince one's self that accused are probably guilty and that actions that convict them are moral even the proof is insufficient or weak or the procedure flawed.

Most people want to do the right thing wherein right thing is almost entirely defined by norms and customs of their environment. If the norms and expectations are high ethical and correct standards people will follow them to the degree they are able.

To what degree are such standards broken or defective in America though?

Lest we forget the head lawyer of Texas a state home to aprox 27 million people or around 8% of the nation is a man whose own prosecution has for years only been stymied by the difficulty of prosecuting the man at the head of the states justice department. Either 8 or 9 (I've lost track) directly beneath him have resigned and accused him of corruption.

This isn't even an isolated instance corruption is found in fact all over the united states.

Even when in theory we would like to do the right thing we have a hard time establishing what standards are even real. Look at the fact. For proof of that look no further than the science of hair analysis which the FBI spent decades using to convict the accused before we realized that they were incapable of differentiating dog hair from human hair.

Think of entire people going in to work producing work product about imaginary science they were pretending to do competently and sending people to death row in part because of their fake work product.

https://www.washingtonpost.com/local/crime/fbi-overstated-fo...

The justice system in America is a bad joke that is primarily differentiated from say Cuba in that bribes are paid to your lawyer instead of directly to government officials.

[spoonjim]

Prosecutors are shaped by an environment that equates “the right thing” to “punishing the guilty.” It’s like any profession... a surgeon will think you need surgery and a prosecutor will think the guy in handcuffs needs to go to jail.

[hluska]

Sadly, evidence contradicts that thought. It shouldn’t but it does.

[hutzlibu]

Everyone wants to do the right thing.

It is just that some think the right thing for themself is to maximize their career progress.

And I would not know in general about state prosecutors, but what I know anecdotally second hand, does not sound good.

[melq]

I believe that's true as well, and I never said otherwise.

[XorNot]

The prosecutor doesn't see it that way. They see it as just "knowing" the guy is "definitely guilty". It's just like, a feeling you know? And a win will look great when they go for re-election (why is that even a thing?).

Presuming rational actors in this case is missing the general problem with the system: people very easily convince themselves they know the truth despite how the validity of the evidence changes. Whatever it said initially, that must be right - it's misinformation 101. Once a belief is established it is much harder to change.

[jfengel]

And a win will look great when they go for re-election (why is that even a thing?).

You would prefer that they not be elected? That they would be appointed by some politician, with the public having no recourse?

The fact is that the public like prosecutors who convict people. That's deeply unfair. But it's also deeply democratic.

[XorNot]

You already elect politicians. If that system is producing people you don't trust to manage the affairs of state, why would electing prosecutors lead to different results?

[jfengel]

Hard to say, really. It's one of those compromises, quis custodiet and all that.

I very much agree with you: a government has a monopoly on violence and ultimately we all end up trusting it. Too many checks and balances lead to gridlock. Too few lead to oppression. Much of it ends up being decided on inertia. We do it both ways in different jurisdictions, with successes and failures in both.

[mlindner]

That's not how prosecuters work in the US. Their goal is to win the case, not make the "right" decision. They'll spin evidence as hard as they can against the accused.

[nickodell]

>taking the life of an innocent

The prosecutor isn't unilaterally deciding whether the DNA evidence is valid. There will be a public hearing where both the prosecution and defense show evidence about the validity of the DNA evidence, and a court will rule based on that evidence.

[afthonos]

You should read up on the rates of plea bargaining, as well as the methods prosecutors use to push defendants to do so, which include:

- Not revealing all information they are required to.

- Parallel construction (see above)

- Overcharging, with the goal of making the plea more palatable than the cost/risk of defending multiple absurd charges.

- Lying to you while getting to throw you in jail if you lie to them.

As a result, only 5% of federal cases go to trial.

None of behaviors these are rare. If your understanding of the legal system is based on popular culture, as most people’s is, it is basically law enforcement propaganda that has little relationship to reality.

[nickodell]

Believe it or not, I was already aware of all of those things, having followed a number of criminal defense blogs.

If you read the article and appellate decision which is linked, it says what I just said:

>On Wednesday, the appellate court sided with the defense [PDF] and sent the case back to a lower court directing the judge to compel Cybergenetics to make the TrueAllele code available to the defense team.

[afthonos]

Apologies, I thought you were stating general facts about DNA evidence in general, not about this specific case.

[bscphil]

Yeah, the system is in a pretty horrific state when you have to count on prosecutors' restraint for anything. Granted, we are in such a state, but it's beneficial not to just accept that as the status quo.

[bdavisx]

It would also give every person convicted using their software an incentive to open an appeal.

[Spivak]

I like how this is considered a bad thing. Like we can’t let this guy point out that he’s being convicted by an unauditable black box that suddenly isn’t worth using if it has to stand up to scrutiny because then everyone would want to. The horror.

Like I’m actually kinda shocked this is the reality. I would have assumed that DNA evidence would have some blessed methodologies and tools/algorithms, with a strict definition of what constitutes a match or partial match specifically so this wouldn’t happen.

[belorn]

Here in Sweden, there is a legal practice that you can't find someone guilty based on DNA evidence alone. Probabilistic evidence is nice to point law enforcement in a direction, but there is always a risk of false positives.

In this case we are also dealing with probabilistic genotyping involving DNA Mixtures with DNA from several individual contributors, and most likely degraded DNA. It is the tool the police can use when other more traditional methods is not possible because of the mixture. That should mean the qualitative value of the DNA evidence is lower, requiring even stronger additional evidence from other sources.

[Blikkentrekker]

In the U.S.A., a man can be convicted upon the word of a single witness, even if the defence poked significant holes into the reliability of said witness.

What can happen in the U.S.A. is that one lone man says “I saw the defendant do it.”; the defence attorney can point out that the witness was drunk at the time, that he has motive to lie, that he initially reported another story to the police and only later settled on this story, and what ever else to render him completely unreliable.

The jury can nevertheless return a verdict of guilty, and there are no grounds for appeal then, as it is the power of the jury to decide who is “reliable”, and it is not required to explain it's thought process at all.

What a shocking development that such would result into a criminal justice system where a defendant's race and gender plays such a factor.

[mlindner]

> What a shocking development that such would result into a criminal justice system where a defendant's race and gender plays such a factor.

It takes only one person in the jury to hang the jury. It's not a majority vote it's a unanimous vote.

[Blikkentrekker]

Bench trials are also required to be unanimous.

Methinks the U.S.A.-man often thinks that bench trials in other countries are done by a single juror; they are not and can range from three to twelve in how many professional jurors are required to reach a unanimous conclusion.

But this is not so much about lay fact finding vis-ǎ-vis trained fact-finding, but the rules of evidence.

Scotland also has jury trials, but does not permit that a man be convicted upon the word of a single witness; there must be further independent, corroborating evidence.

There are many other differences with, for instance, the Dutch system that guarantee a fairer trial. One very big one is that in the Netherlands both the defence and prosecution have one groundless appeal; either side if it not agree with the verdict can demand a fresh new trial with different jurors once. — this obviously reduces flukes of justice.

The other is far stronger rules of evidence and more consistent rulings. Juries are very fickle and legal experts rarely know what verdict they will return based on the evidence they saw before them; whereas with trained jurors, their verdict is often similar with the same evidence given to them.

Indeed, one might argue that the practice of plea bargains, which would be considered unconceivably unethical in most jurisdictions, are actually the saving grace, as they permit stability to this otherwise fickle system as the negotiations between both parties are more reproducible given the same evidence, than fickle juries.

[MereInterest]

Interesting. What does Swedish law consider non-probabilistic evidence? Even something like eye-witness testimony I would consider to be probabilistic, given how easy it is to manipulate memories, even unintentionally.

[acct776]

Clear videographic, use of a PIN that only the accused had access to, etc

[gwd]

How do you prove that only the accused had access to a PIN? Surely that's probabilistic as well?

[ALittleLight]

Isn't all evidence probabilistic? What's an example of something that isn't?

[hluska]

This is one of these scary areas where reality matches my teenaged experiences playing Shadowrun. I used to hope that the brutal dystopia we played through was just fun. Now I’m seeing that the present needs a word even more brutal than dystopia. :(

[alchemism]

Kafkatopia

[hluska]

You nailed it! Thanks friend, that’s some wicked writing and thinking.

[Blikkentrekker]

I do not find this reality worse at all than people being convicted upon the black box testimony of blood splatter analysts, which is simply an expert testifying that in his conclusion the blood indicated such-and-that.

Or of course, that the U.S.A. permits conviction based on the sworn testimony of a single eye witness, which is noteably unreliable.

All of these are black boxes that are routinely meant to convict. — it would not surprise me if such software were far more reliable than human eye witness accounts, but if there's one thing I noticed, it's that a man is seldom afraid of bad matters, he is only afraid of bad matters produced by new technology; far worse matters can stay, so long as they be ancient enough.