Concern 881 · Working draft · editorial review in progress
Adversarial testing rights for defendants
Defense access to testing concerns whether a person accused of wrongdoing can examine and challenge software-based evidence used against them.
Understanding the concern
If an important result comes from a private tool, the defense may need technical information to test errors, assumptions or suitability for the case. A vendor may object that this exposes trade secrets. The tension is between protecting confidential information and allowing a fair challenge to evidence that may affect someone's liberty.
In State v. Pickett, a New Jersey appellate court addressed access to probabilistic DNA software source code under a protective order. That is a specific software-evidence case, not a universal rule for all AI. Think of being allowed to question a measuring instrument rather than being told only that its maker says it works. Controlled expert access can be one way to examine the claim.
An example
A criminal case relies on a software analysis, and the defense seeks the materials needed to test whether it worked correctly in that case.
Illustrative unless identified as a documented case.
Words in plain English
- AI
- Software that learns patterns from examples or uses rules to perform tasks such as recognizing images or generating text. It can make mistakes and does not understand every situation as a person would.
- Adversarial
- In this context, designed to challenge, trick, or attack a system.
Evidence and its limits
The 2021 New Jersey decision concerns probabilistic DNA software and local discovery standards. It does not establish unrestricted access to every model or treat this software as a chatbot.
New Jersey Superior Court, Appellate Division · Court decision
State of New Jersey v. Corey Pickett, A-4207-19 ↗ (opens in a new tab)2021 decision addresses defense access to probabilistic DNA software source code under protective order. Not a universal right to unrestricted access to every AI model.
Broader frameworks and background
These resources provide context. They do not establish every claim in this concern.
- EU AI Act — high-level summary (opens in a new tab)
regulation
- Council of Europe AI Convention (opens in a new tab)
regulation
- International humanitarian law (IHL)
framework
The body of law that governs the conduct of armed conflict and the protection of people who are not fighting, which applies to AI used in or for conflict.
A question to discuss
What access is needed for a fair challenge, and can legitimate confidentiality concerns be handled through a protective process?
Keep track of different views, what needs checking, and any next step in your own discussion notes.
Open discussion notes →Principles for the conversation
Before you finish · reflect together
Virtues and principles to consider
Virtues are qualities we practice in how we treat people and make choices. They are not scores for judging someone. Use these ideas to explore what a thoughtful response could look like.
Justice
Justice means fair treatment, fair procedures, and attention to who receives benefits and burdens. It asks whether people with less power can be heard and seek repair.
Look at outcomes across different groups and individual cases. Provide a usable way to challenge decisions and correct harm. Equal wording in a policy does not guarantee equal treatment in practice.
Ask together: Who benefits, who bears the cost, and who can challenge the decision?
Accountability
Accountability means being answerable for decisions and taking responsibility for repair. It requires more than saying that the software made the choice.
Name the person or team responsible, keep useful records, and give them authority to correct problems. Make the route to a complaint clear to the people affected.
Ask together: Who will answer for the outcome and help put things right?
Dignity
Dignity means recognizing each person's worth regardless of usefulness, status, or a system's score. People deserve respect and a voice in matters that affect them.
Explain important decisions, avoid humiliating treatment, and keep room for a person's story. Do not treat a prediction as a complete account of who someone is.
Ask together: Does this use treat each person as someone whose experience matters?
Editorial ratings
These are editorial judgments from the register, not measured probabilities or predictions about your situation.
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