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Defendant Review the DNA Analysis Software

According to a New Jersey appeals court in New Jersey v. Pickett defendants entitled to review proprietary software code used in the prosecution’s expert probabilistic DNA Analysis. In 2017, defendant Corey Pickett and an accomplice were arrested and charged with first-degree murder after allegedly fired weapons into a crowd, wounding one victim and killing another.

The police discovered a revolver and a ski mask.  Finding the samples inappropriate for traditional DNA Analysis., swabs from the revolver and ski mask were sent to Cybergenetics Corp.’s Laboratory to use its TrueAllele software to run probabilistic genotyping analysis on the samples.  The TrueAllele software determined that Pickett was the source of the DNA on the revolver and ski mask.

TrueAllele has not yet been found to be a reliable or admissible scientific method in New Jersey, the court held a Frye hearing to determine the reliability and admissibility of the prosecution’s expert analysis based on the TrueAllele analysis, where experts from both sides were heard. Pickett raised concerns that the code had not been independently reviewed and could likely contain bugs or flaws and requested TrueAllele’s software code to cross-examine the expert and independently assess the software. Cybergenetics Corp. opposed this request on the ground that the source code is a trade secret and should not be published.

The appeals court reversed, citing constitutional concerns that without access to the source code the raw materials of the software programming a defendant’s right to present a complete defense may be substantially compromised. The Court depended on substantial amici briefing, including from the New Jersey Attorney General, Legal Aid Society, and the Innocence Project.  The court ordered that issue be remanded to the trial court to compel production of the source code, subject to an appropriate protective order.

New Jersey is not the only court to have recently addressed whether a defendant may be entitled to review proprietary probabilistic DNA Analysis. software.  In New York and Illinois, courts held that the code must be provided, and upon review by the defendant, significant flaws were found in the code.  So crucial were the shortcomings, that in New York, the state stopped depending on that software altogether.

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