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Criminal Law Blog

February 21, 2010

If you were accused of murder, and they said your fingerprint was on the handle of the knife that stabbed the victim, you would have a right to have your own fingerprint expert witness look at the evidence.  Fair’s fair, right?  The prosecutor has his expert look at the evidence; you have yours look at the evidence. 

If you were accused of sexual assault, and they said your semen proved it, you would have a right to have your own DNA expert witness look at the evidence.  Again, the prosecutor has his expert look at the evidence; you have yours look at the evidence. 

If you were accused of murder, and they said ballistics evidence showed that your handgun was the one that fired the fatal shot, you would have a right to have your own ballistics expert witness look at the evidence.  Again, The prosecutor has his expert look at the evidence; you have yours look at the evidence. 

Why is it then, that the manufacturer of one of the “breathalyzer” machines, the Intoxilyzer 5000EN (and the one we use in Texas) refuses to turn over the source code over to the State of Minnesota?  Click this link to see a Feb. 19, 2010 news story about this.

How could the State of Minnesota know that the source code written by CMI will reliably and accurately analyze the breath sample in the Intoxilyzer’s sample chamber and determine from it how many tenths, hundredths, and thousandths of a gram of alcohol per 210 liters of air blown by an accused driver?

More importantly, how could the defendant in any given Minnesota DWI case know? 

Well, they just wouldn’t, and that is what happens when you have an assembly line justice factory cranking out ordinary injustice, as Scott H. Greenfield put it in his blog “Simple Justice."

Good science often means that a scientist formed a hypothesis, wrote down a procedure by which he meant to test the hypothesis (usually isolating only one variable), then tested it, then measured what happened during the test, then drew conclusions based on the evidence.  This isn’t really complicated stuff.  Suppose your computer isn’t running and you want it to be.  So you check to see if the power switch is turned to “on.” If it isn’t, you switch it on.  If the computer still doesn’t start running, you look for the next variable.  If the power switch is already turned on, then you check to see if the computer is plugged in.  If it isn’t, you plug it in.  If your computer doesn’t start running when it is plugged in and turned on, then you might look to see if power is flowing to the electrical plug.  You’d take a lamp that you know is working and plug it in.  If the light comes on, you’ve eliminated the possibility that there is no power going to the plug. 

Once a scientist has drawn his conclusions, he might write a paper and have it peer-reviewed by other scientists in his field.  One of the key things those other scientists are looking for is repeatability.  If they do the same experiment in the same way that the first experiment was done, they should expect the same results. 

Now, why wouldn’t the good scientists at CMI, the makers of a machine on which rest the freedom, dignity, and reputations of literally millions of people world wide NOT want the purchasers of the machine to know what the source code is?  Could it be that if someone else knows what their source code is, that they’ll find that CMI’s source code isn’t every bit as reliable and accurate as CMI claims?  Their answer is: we have to protect our proprietary interests in the source code.  The Minnesota Supreme Court decided against CMI on that, saying that a DWI defendant has a right to examine the source code if he can show why it’s relevant. 

Now it so happens that in Texas, we have the same problem that they have in Minnesota.  CMI doesn’t disclose what the source code is to the State of Texas.  Click on this link to see that the State’s own witness testified to that:  Testimony_regarding_CMI_source_code.pdf.  Stay tuned.  Hard working defense attorneys will attack this issue more frequently in Texas. 

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