Evidence

AI and Predictive Policing: Balancing Technological Innovation and Civil Liberties

November 20, 2024
Artificial Intelligence, Discrimination, Evidence, Law Enforcement, Privacy, Public Safety

Alexander Engemann, MJLST Staffer

To maximize their effectiveness, police agencies are constantly looking to use the most sophisticated preventative methods and technologies available. Predictive policing is one such technique that fuses data analysis, algorithms, and information technology to anticipate and prevent crime. This approach identifies patterns in data to anticipate when and where crime will occur, allowing agencies to take measures to prevent it.[1] Now, engulfed in an artificial intelligence (“AI”) revolution, law enforcement agencies are eager to take advantage of these developments to augment controversial predictive policing methods.[2]

In precincts that use predictive policing strategies, ample amounts of data are used to categorize citizens with basic demographic information.[3] Now, machine learning and AI tools are augmenting this data which, according to one source vendor, “identifies where and when crime is most likely to occur, enabling [law enforcement] to effectively allocate [their] resources to prevent crime.”[4]

Both predictive policing and AI have faced significant challenges concerning issues of equity and discrimination. In response to these concerns, the European Union has taken proactive steps promulgating sophisticated rules governing AI applications within its territory, continuing its tradition of leading in regulatory initiatives.[5] Dubbed the “Artificial Intelligence Act”, the Union clearly outlined its goal of promoting safe, non-discriminatory AI systems.[6]

Back home, we’ve failed to keep a similar legislative pace, even with certain institutions sounding the alarms.[7] Predictive policing methods have faced similar criticism. In an issue brief, the NAACP emphasized, “[j]urisdictions who use [Artificial Intelligence] argue it enhances public safety, but in reality, there is growing evidence that AI-driven predictive policing perpetuates racial bias, violates privacy rights, and undermines public trust in law enforcement.”[8] This technological and ideological marriage clearly poses discriminatory risks for law enforcement agencies in a nation where a black person is already exponentially more likely to be stopped without just cause as their white counterparts.[9]

Police agencies are bullish about the technology. Police Chief Magazine, the official publication of the International Association of Chiefs of Police,  paints these techniques in a more favorable light, stating, “[o]ne of the most promising applications of AI in law enforcement is predictive policing…Predictive policing empowers law enforcement to predict potential crime hotspots, ultimately aiding in crime prevention and public safety.[10] In this space, facial recognition software is gaining traction among law enforcement agencies as a powerful tool for identifying suspects and enhancing public safety. Clearview AI stresses their product, “[helps] law enforcement and governments in disrupting and solving crime.”[11]

Predictive policing methods enhanced by AI technology show no signs of slowing down.[12] The obvious advantages to these systems cannot be ignored, allowing agencies to better allocate resources and manage their staff. However, as law enforcement agencies adopt these technologies, it is important to remain vigilant in holding them accountable to any potential ethical implications and biases embedded within their systems. A comprehensive framework for accountability and transparency, similar to European Union guidelines  must be established to ensure deploying predictive policing and AI tools do not come at the expense of marginalized communities. [13]

 

Notes

[1] Andrew Guthrie Ferguson, Predictive Policing and Reasonable Suspicion, 62 Emory L.J. 259, 265-267 (2012)

[2] Eric M. Baker, I’ve got my AI on You: Artificial Intelligence in the Law Enforcement Domain, 47 (Mar. 2021) (Master’s thesis).

[3] Id. at 48.

[4] Id. at 49 (citing Walt L. Perry et al., Predictive Policing: The Role of Crime Forecasting in Law Enforcement Operations, RR-233-NIJ (Santa Monica, CA: RAND, 2013), 4, https://www.rand.org/content/dam/rand/ pubs/research_reports/RR200/RR233/RAND_RR233.pdf).

[5] Commission Regulation 2024/1689 or the European Parliament and of the Council of 13 June 2024 laying down harmonized rules on artificial intelligence and amending Regulations (Artificial Intelligence Act), 2024 O.J. (L 1689) 1.

[6] Lukas Arnold, How the European Union’s AI Act Provides Insufficient Protection Against Police Discrimination, Penn. J. L. & Soc. Change (May 14,2024), https://www.law.upenn.edu/live/news/16742-how-the-european-unions-ai-act-provides#_ftn1.

[7] See Margaret Hu, Algorithmic Jim Crow, 86 Fordham L. Rev. 633, 664 (2017),

https://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=5445&context=flr. (“Database screening and digital watchlisting systems, in fact, can serve as complementary and facially colorblind supplements to mass incarcerations systems. The purported colorblindness of mandatory sentencing… parallels the purported colorblindness of mandatory database screening and vetting systems”).

[8] NAACP, Issue Brief: The Use of Artificial Intelligence in Predictive policing, https://naacp.org/resources/artificial-intelligence-predictive-policing-issue-brief (last visited Nov. 2, 2024).

[9] Will Douglas Heaven, Artificial Intelligence- Predictive policing algorithms are racist. They need to be dismantled, MIT Tech. Rev. (July 17, 2020), https://www.technologyreview.com/2020/07/17/1005396/predictive-policing-algorithms-racist-dismantled-machine-learning-bias-criminal-justice/ (citing OJJDP Statistical Briefing Book. Estimated number of arrests by offense and race, 2020. Available: https://ojjdp.ojp.gov/statistical-briefing-book/crime/faqs/ucr_table_2. Released on July 08, 2022).

[10] See The Police Chief, Int’l Ass’n of Chiefs of Police, https://www.policechiefmagazine.org (last visited Nov. 2, 2024);Brandon Epstein, James Emerson, and ChatGPT, “Navigating the Future of Policing: Artificial Intelligence (AI) Use, Pitfalls, and Considerations for Executives,” Police Chief Online, April 3, 2024.

[11] Clearview AI, https://www.clearview.ai/ (last visited Nov. 3, 2024).

[12] But see Nicholas Ibarra, Santa Cruz Becomes First US City to Approve Ban on Predictive Policing, Santa Cruz Sentinel (June 23, 200) https://evidentchange.org/newsroom/news-of-interest/santa-cruz-becomes-first-us-city-approve-ban-predictive-policing/.

[13] See also Roy Maurer, New York City to Require Bias Audits of AI-Type HR Technology, Society of Human Resources Management (December 19, 2021), https://www.shrm.org/topics-tools/news/technology/new-york-city-to-require-bias-audits-ai-type-hr-technology.

 

Raising the Bar: Rule 702 Changes Illuminate the Need for Science Literacy in the Judiciary

December 16, 2023
Evidence, Legal Education

David Lee, MJLST Staffer

On December 1, 2023, amendments to Federal Rule of Evidence 702 (FRE 702) took effect.[1] FRE 702 governs the admissibility of expert witness testimony. Central to its purpose is ensuring that such testimony is both relevant to the case and based on a reliable foundation. The rule sets the qualifications for experts based on their knowledge, skill, experience, training, or education, and emphasizes the crucial role of the trial judge as a gatekeeper. This role involves assessing the testimony’s adherence to relevance and reliability before it reaches the jury, thereby upholding the fairness and integrity of the judicial process and ensuring that the legal system remains aligned with evolving scientific and technical knowledge.[2]

Prior to the amendments, there was inconsistent application of FRE 702.[3] According to the Advisory Committee on Evidence Rules, the changes serve to reinforce that the criteria for expert witness admissibility laid out in FRE 702 are just that – criteria for admissibility and not questions of weight.[4] When read properly, FRE 702 makes expert witness reliability a threshold question for judges to answer, and the amendments reinforce this “gatekeeping” function of judges.[5]  With the new amendments clarifying the role of judges as arbiters of whether an expert’s “opinion reflects a reliable application of the principles and methods [of relevant scientific, technical, or other specialized knowledge]” to the facts of the case, it is imperative that the judiciary is sufficiently literate in science and the scientific method to properly serve this function.

Rule 702. Testimony by Expert Witnesses (amendments italicized and stricken)

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if the proponent demonstrates to the court that it is more likely than not that:

(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; (b) the testimony is based on sufficient facts or data; (c) the testimony is the product of reliable principles and methods; and (d) the expert has reliably applied expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.

The Importance of Scientific Acumen on the Bench

Science literacy on the bench – referring to the judiciary’s understanding and comprehension of scientific principles and methodologies – has become increasingly vital in the modern legal landscape. This form of literacy encompasses not just a basic grasp of scientific concepts but also an appreciation of how scientific knowledge evolves and how it can be rigorously applied in legal contexts. As courts frequently encounter cases involving complex scientific evidence – from DNA analysis to digital forensics – judges equipped with science literacy are better positioned to evaluate the credibility and relevance of expert testimony accurately. The absence of this scientific acumen can lead to significant judicial errors or misunderstandings.[6] Entire branches of forensic science such as bite mark analysis, microscopic hair comparison, and tire track analysis – once taken for granted as valid and widely accepted by courts – have been discredited as unreliable and lacking scientific underpinnings.[7] These misjudgments about the validity of forensic methods have previously led to wrongful convictions.[8] Lack of understanding in environmental science has sometimes resulted in rulings on cases involving pollution and climate change that are highly controversial regarding their interpretation of the science.[9] These examples underline the necessity for judges to possess a robust foundation in scientific literacy to ensure just and informed decision-making in an era where science and technology are deeply intertwined with legal issues.

The Need for Additional Educational Initiatives

Judges are often apprehensive when confronted with complex scientific evidence in cases, partly due to their limited background in the hard sciences, as illustrated by one judge’s shift from pre-med to law after struggles with organic chemistry.[10] This apprehension underscores the growing necessity for science literacy in the judiciary, particularly given that judges are well-equipped to handle the fundamental aspects of scientific evidence: accuracy in observation and logical reasoning.[11] While judges may not be familiar with the specific terminologies and conventions of various scientific fields, their aptitude in swiftly grasping diverse issues, coupled with focused science education programs, would equip them to adeptly handle scientific matters in court. The approach for addressing the distinctive need for judicial education in science necessarily differs from the typical science education for scientists. Judges don’t require extensive training in theoretical concepts or complex statistical inferences as scientists do. Their role is more akin to a scientific journal editor, assessing if the scientific evidence presented meets acceptable standards. This task is supported by attorneys, who educate judges on pertinent scientific issues through briefs and arguments. The key for judicial science education is accessibility and breadth, given the variety of cases a judge encounters. The Reference Manual on Scientific Evidence, a crucial resource, helps judges understand scientific foundations and make informed decisions without instructing on the admissibility of specific evidence types; however, the most recent edition was published in 2011 and does not reflect advances in science or emerging technologies relevant to judges today.[12] Judicial education programs supported by the Federal Judicial Center further enhance judges’ capabilities in addressing complex scientific and technical information in our rapidly evolving world.[13] While these resources serve an important function, repeated misjudgments of the quality of scientific evidence by courts indicates that additional resources are needed.

The amendments to Federal Rule of Evidence 702 reemphasize the role that judges play regarding scientific and technical evidence. These changes not only clarify the gatekeeping role of judges in assessing expert witness testimony but also highlight the growing imperative for science literacy in the judiciary. This literacy is essential for judges to make informed, accurate decisions in an era increasingly dominated by complex scientific evidence. The evolving landscape of science and technology underscores the need for continuous educational initiatives to equip judges with the necessary tools to adapt and respond effectively. Resources like the Reference Manual on Scientific Evidence – despite needing updates – and educational programs provided by the Federal Judicial Center play a crucial role in this endeavor. As the legal world becomes more intertwined with scientific advancements, the judiciary’s ability to keep pace will be instrumental in upholding the integrity and efficacy of the justice system. This progression towards a more scientifically literate bench is not just a necessity but a responsibility.

Notes

[1] https://www.gand.uscourts.gov/news/federal-rules-amendments-effective-december-1-2023.

[2] https://www.law.cornell.edu/rules/fre/rule_702.

[3] https://www.jdsupra.com/legalnews/upcoming-fre-702-amendment-reemphasizes-6303408.

[4] Id.

[5] https://www.apslaw.com/its-your-business/2023/11/30/return-of-the-gatekeepers-amendments-to-rule-702-clarify-the-standard-of-admissibility-for-expert-witness-testimony.

[6] https://www.americanbar.org/groups/judicial/publications/appellate_issues/2019/winter/untested-forensic-sciences-present-trouble-in-the-courtroom.

[7] Id.

[8] Id.

[9] https://slate.com/news-and-politics/2023/12/supreme-court-vs-science.html.

[10] https://www.americanbar.org/groups/judicial/publications/judges_journal/2017/fall/science-educatifederal-judges.

[11] Id.

[12] https://www.nationalacademies.org/our-work/science-for-judges-development-of-the-reference-manual-on-scientific-evidence-4th-edition.

[13] Id.

DNA Testing and Death: How Decades-Long Procedural Battles Determine Who Has to Die

December 5, 2022
Criminal Law, DNA Evidence, Evidence, Forensic Evidence, Litigation

Alexa Johnson-Gomez, MJLST Staffer

When individuals convicted of murder claim actual innocence, crime-scene DNA testing has, many times over, been dispositive in proving such innocence. Intuitively, we assume that if someone has been wrongfully convicted, DNA will be the bringer of truth. But what happens when a defendant cannot get their requested DNA testing because the State argues their claim is procedurally defaulted or barred by the statute of limitations?

Reed v. Goertz is a case in the current U.S. Supreme Court term. Petitioner Rodney Reed argues that his due process rights were violated by a refusal to complete DNA testing after he filed post conviction petitions for relief. While the facts are fairly case-specific and relate to Texas criminal procedure, the Court’s holding in this case could have important implications for when the clock starts to run on petitions for crime-scene DNA testing, as well as for death-row claims of actual innocence more generally.

Back in 1998, a Texas court convicted Rodney Reed of the murder of Stacey Stites; the evidentiary basis for this conviction was solely the presence of his sperm.[1] Reed has maintained his innocence since trial, explaining that his sperm was present because he was having a secret, long-standing affair with Stites.[2] At trial, Reed theorized that the murderer might have been the man Stites was engaged to, who was perhaps retaliating against Stites, a white woman, for having an affair with Reed, a Black man.

In 2014, Reed sought post conviction DNA testing under Chapter 64 of the Texas Code of Criminal Procedure. This provision allows a convicted person to obtain post conviction DNA testing of biological material if the court finds that certain conditions are met.[3] The state trial court denied this motion in November 2014, on the grounds that Reed failed to prove by a preponderance of the evidence that he would not have been convicted but for exculpatory results. Reed appealed the denial, and the appellate court remanded for additional fact finding. Then in September 2016, after additional fact finding was done, the state trial court denied the post conviction DNA testing yet again. The appellate court affirmed the denial in April 2017 and denied rehearing in October 2017.

At this stage, Reed filed a 42 U.S.C. § 1983 complaint against the prosecuting attorney, challenging the constitutionality of Chapter 64 both on its face and as applied to his case.[4] The district court dismissed all of Reed’s claims for failure to state a claim; the Fifth Circuit affirmed in April 2021, stating that Reed’s claim was untimely and that Reed knew or should have known of his injury in November 2014. Generally, time bars in post conviction follow a common principle: if a defendant did know or should have known of a claim, that is the point at which the clock starts running. Defense counsel argues that the clock began to run in October 2017, after Reed exhausted his post conviction appeals fully.

At oral argument on October 11, 2022, the state argued that the clock started prior to the rehearing date in October 2017. Justice Kagan reasoned that it would be simpler to acknowledge we do not know what the authoritative construction of a court of appeals is until appeals are concluded. Justice Jackson agreed, noting that if the federal clock starts while the state appeals process is still ongoing, then the federal courts would have to pause consideration to allow state courts to weigh in first. This would be untenable and overly chaotic. Defense counsel reminded the court of the mounting evidence that points at Reed’s innocence, evidence which is still under review.

While not the hottest topic of this Supreme Court term, this case could still have important implications. While the use of DNA testing to prove actual innocence has been a practice in the world of litigation for the past few decades, cases that have yet to get their post conviction DNA testing done, like Reed’s, often stand in such perilous status because of procedural bars.

A haunting example—the recent execution of Murray Hooper in Arizona. 76 years old at the time of his death, Hooper maintained his innocence until his day of execution.[5] There was never any forensic testing in Hooper’s case that proved he conclusively committed the murders. Hooper’s lawyers filed appeals to get newly discovered evidence considered and forensic testing completed,[6] yet these petitions were all denied.

In theory, post conviction and habeas relief are meant to be reserved for the most deserving of defendants. The courts do not want to allow convicted murderers chance after chance at getting a conviction or sentence overturned, and there is, of course, the presumption that any conviction was right the first time. Yet the high procedural barrier to bringing such claims is not in line with the reality of wrongful convictions. Since 1973, 190 death-row inmates have been exonerated.[7]Post conviction DNA testing is not merely allowing defendants to draw out their appeals process and stave off execution, but is an important scientific tool that can check if the trial court got it right. Preventing petitioners from accessing DNA testing just because of procedural barriers is an injustice, and hopefully the Supreme Court rules as such in Reed v. Goertz.

Notes

[1] Innocence Staff, 10 Facts About Rodney Reed’s Case You Need to Know, Innocence Project (Oct. 11, 2019), https://innocenceproject.org/10-facts-you-need-to-know-about-rodney-reed-who-is-scheduled-for-execution-on-november-20/.

[2] Amy Howe, Justices Wrestle with Statute of Limitations in Rodney Reed’s Effort to Revive DNA Lawsuit, SCOTUSblog (Oct. 11, 2022), https://www.scotusblog.com/2022/10/justices-wrestle-with-statute-of-limitations-in-rodney-reeds-effort-to-revive-dna-lawsuit/.

[3] See Tex. Code Crim. Proc. Ann. § 64.03.

[4] Reed v. Goertz, 995 F.3d 425, 428 (5th Cir. 2021).

[5] Liliana Segura, Out of Time, The Intercept (Nov. 15, 2022), https://theintercept.com/2022/11/15/murray-hooper-arizona-execution/.

[6] Associated Press, Lawyers for Murray Hooper File New Appeal as Execution Date Nears, Fox 10 (Nov. 1, 2022),https://www.fox10phoenix.com/news/lawyers-for-murray-hooper-file-new-appeal-as-execution-date-nears.

[7] Innocence, Death Penalty Information Center, https://deathpenaltyinfo.org/policy-issues/innocence (last visited Nov. 27, 2022).

iMessedUp – Why Apple’s iOS 16 Update Is a Mistake in the Eyes of Litigators.

October 5, 2022
Data, Data Privacy, Evidence, Internet, Litigation

Carlisle Ghirardini, MJLST Staffer

Have you ever wished you could unsend a text message? Has autocorrect ever created a typo you would give anything to edit? Apple’s recent iOS 16 update makes these dreams come true. The new software allows you to edit a text message a maximum of five times for up to 15 minutes after delivery and to fully unsend a text for up to two minutes after delivery.[1] While this update might be a dream for a sloppy texter, it may become a nightmare for a victim hoping to use text messages as legal evidence. 

But I Thought my Texts Were Private?

Regardless of the passcode on your phone, or other security measures you may use to keep your correspondence private, text messages can be used as relevant evidence in litigation so long as they can be authenticated.[2] Under the Federal Rules of Evidence Rule 901(a), such authentication only requires proof sufficient to support a finding that the evidence at issue is what you claim it is.[3] Absent access to the defendant’s phone, a key way to authenticate texts includes demonstrating the personal nature of the messages, which emulate earlier communication.[4] However, for texts to be admitted as evidence beyond hearsay, proof of the messages through screenshots, printouts, or other tangible methods of authentication is vital.[5]

A perpetrator may easily abuse the iOS 16 features by crafting harmful messages and then editing or unsending them. This has several negative effects. First, the fact that this capability is available may increase perpetrator utilization of text, knowing that disappearing harassment will be easier to get away with. Further, victims will be less likely to capture the evidence in the short time before the proof is rescinded, but after the damage has already been done. Attorney Michelle Simpson Tuegal who spoke out against this software shared how “victims of trauma cannot be relied upon, in that moment, to screenshot these messages to retain them for any future legal proceedings.”[6] Finally, when the victims are without proof and the perpetrator denies sending, psychological pain may result from such “gaslighting” and undermining of the victim’s experience.[7]

Why are Text Messages so Important?

Text messages have been critical evidence in proving the guilt of the defendant in many types of cases. One highly publicized example is the trial of Michelle Carter, who sent manipulative text messages to encourage her then 22-year-old boyfriend to commit suicide.[8] Not only were these texts of value in proving reckless conduct, they also proved Carter guilty of involuntary manslaughter as her words were shown to be the cause of the victim’s death. Without evidence of this communication, the case may have turned out very differently. Who is to say that Carter would not have succeeded in her abuse by sending and then unsending or editing her messages later?

Text messaging is also a popular tool for perpetrators of sexual harassment, and it happens every day. In a Rhode Island Supreme Court case, communication via iMessage was central to the finding of 1st degree sexual assault, as the 17-year-old plaintiff felt too afraid to receive a hospital examination after her attack.[9] Fortunately, the plaintiff had saved photos of inappropriate messages the perpetrator sent after the incident, amongst other records of their texting history, which properly authenticated the texts and connected him to the crime. It is important to note, however, that the incriminating screenshots were not taken until the morning after and with the help of a family member. This demonstrates how it is not often the first instinct of a victim to immediately memorialize evidence, especially when the content may be associated with shame or trauma. The new iOS feature may take away this opportunity to help one’s case through messages which can paint a picture of the incident or the relationship between the parties.

Apple Recognized That They Messed Up

The current iOS 16 update offering two minutes to recall messages and 15 minutes to edit them is actually an amendment to Apple’s originally offered timeframe of 15 minutes to unsend. This change came in light of efforts from an advocate for survivors of sexual harassment and assault. The advocate wrote a letter to the Apple CEO warning of the dangers of this new unsending capability.[10] While the decreased timeframe that resulted leaves less room for abuse of the feature, editing is just as dangerous as unsending. With no limit to how much text you can edit, one could send full sentences of verbal abuse simply just to later edit and replace them with a one-word message. Furthermore, if someone is reading the harmful messages in real time, the shorter window only gives them less time to react – less time to save the messages for evidence. While we can hope that the newly decreased window makes perpetrators think harder before sending a text that they may not be able to delete, this is wishful thinking. The fact that almost half of young people have reported being victims to cyberbullying when there has been no option to rescind or edit one’s messages shows that the length of the iOS feature likely does not matter.[11] The abilities of the new Apple software should be disabled; their “fix” to the update is not enough. The costs of what such a feature will do to victims and their chances of success in litigation outweigh the benefits to the careless texter. 

Notes

[1] Sofia Pitt, Apple Now Lets You Edit and Unsend Imessages on Your Iphone. Here’s How to Do It, CNBC (Sep. 12, 2022, 1:12 PM), https://www.cnbc.com/2022/09/12/how-to-unsend-imessages-in-ios-16.html.

[2] FED. R. EVID. 901(a).

[3] Id.

[4] United States v. Teran, 496 Fed. Appx. 287 (4th Cir. 2012).

[5] State v. Mulcahey, 219 A.3d 735 (R.I. Sup. Ct. 2019).

[6] Jess Hollington, Latest Ios 16 Beta Addresses Rising Safety Concerns for Message Editing, DIGITALTRENDS (Jul. 27, 2022) https://www.digitaltrends.com/mobile/ios-16-beta-4-message-editing-unsend-safety-concerns-fix/

[7] Id.

[8] Commonwealth v. Carter, 115 N.E.3d 559 (Mass. Sup. Ct. 2018).

[9] Mulcahey, 219 A.3d at 740.

[10] Hollington, supra note 5.

[11] 45 Cyberbullying Statistics and Facts to Make Texting Safer, SLICKTEXT (Jan. 4, 2022) https://www.slicktext.com/blog/2020/05/cyberbullying-statistics-facts/.



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