Document Type
Book Chapter
Publication Date
4-2026
Abstract
The criminal justice system is becoming automated. At every stage, from policing to evidence to parole, AI tools and other technologies guide outcomes. Debates over the pros and cons of these technologies have overlooked a crucial issue: ownership. Developers often claim that details about how their tools work are trade secrets and refuse to disclose that information to criminal defendants or their attorneys. The introduction of intellectual property claims into the criminal justice system raises under-theorised tensions between life, liberty, and property interests. This chapter argues that trade secrets should not be privileged in criminal proceedings. A criminal trade secret privilege is ahistorical, harmful to defendants, and unnecessary to protect the interests of the secret holder. Meanwhile, compared to substantive trade secret law, the privilege overprotects intellectual property. Further, privileging trade secrets in criminal proceedings fails to serve the theoretical purpose of either trade secret law or privilege law. The trade secret inquiry sheds new light on how evidence rules do, and should, function differently in civil and criminal cases.
Disciplines
Criminal Procedure | Evidence | Law
Recommended Citation
Rebecca Wexler,
AI in Criminal Justice: Against the Trade Secret Privilege,
The Cambridge Handbook of AI and Technologies in Courts, Monika Zalnieriute & Agne Limante (Eds.), Cambridge University Press
(2026).
Available at:
https://scholarship.law.columbia.edu/faculty_scholarship/4829
Comments
This material has been published in "The Cambridge Handbook of AI and Technologies in Courts", edited by Monika Zalnieriute and Agne Limante. This version is free to view and download for private research and study only. Not for re-distribution or re-use. © Cambridge University Press.