The black box on trial : the impact of algorithmic opacity on fair trial rights in criminal proceedings

Abstract

Algorithms are increasingly used in criminal proceedings for evidentiary purposes (e.g. GPS position, for DNA analysis or as means of obtaining digital evidence) and for supporting decision-making (e.g. software for assessing the risk of recidivism of individuals). In a worrying trend, these tools are still concealed in secrecy and opacity preventing the possibility to understand how their specific output has been generated. This chapter focuses on the legal challenges triggered by algorithmic opacity in criminal proceedings. The chapter argues that algorithms may contain miscodes, opacity in algorithms keeps such miscodes hidden, and, as a result, algorithmic opacity impacts fair trial rights.