Clinic Files Brief for Upturn on Probabilistic Genotyping

by Clinic Staff
via Cyberlaw Clinic

The Cyberlaw Clinic filed an amicus brief (pdf) last week in the Superior Court of New Jersey, Appellate Division, on behalf of Upturn, Inc., a nonprofit organization that advocates for equity and justice in the design, governance, and use of technology. The brief supports the defendant-movant, Corey Pickett, in an appeal seeking source code access to TrueAllele, a DNA analysis software developed by Cybergenetics. The amicus brief submitted by the Clinic focuses on the necessity of independent and adversarial review of novel technologies like TrueAllele in ensuring proper administration of justice within the criminal legal system.

The State of New Jersey’s criminal prosecution of Mr. Pickett relies upon evidence generated by TrueAllele, a software that purports to analyze DNA samples that are too complex or degraded for traditional DNA analysis. Acknowledging that TrueAllele has never been found to be reliable and admissible in New Jersey courts, the State requested a Frye hearing, in which it would bear the burden of demonstrating that TrueAllele is reliable and generally accepted to be reliable within the scientific community. However, the State seeks to do this without allowing the defense unrestricted access to TrueAllele’s source code or to the numerous software dependencies required for testing the code. Cybergenetics, the developer of TrueAllele, asserts that full source code access would threaten their proprietary and trade secret interests in the software and instead offered limited access subject to handwritten notes and no power to execute the code.

In response, the defense moved to compel disclosure of the source code and related materials under a protective order that would bind the defense expert reviewer to secrecy but still enable him to perform an effective review of TrueAllele. For example, rather than requiring the expert to review the source code with only pen and paper, a condition set forth by Cybergenetics, the defense expert reviewer would be provided the source code on a standalone computer. However, the trial court denied defense’s motion to compel disclosure of the source code and related materials. The appellate court granted the defendant leave to appeal shortly thereafter.

The brief discusses the troubling histories of both forensic science and software tools, arguing that issues with TrueAllele’s reliability may arise from multiple sources – from mistaken design assumptions to implementation errors. The brief also discusses how TrueAllele’s source code has never been independently reviewed and how independent review by third-party experts have uncovered outcome-determinative errors in the source code or use of at least two of TrueAllele’s competitors. Finally, the brief emphasizes that admitting evidence generated by a technology that has not undergone independent and adversarial testing violates defendants’ due process rights and may also warp the criminal legal system by incentivizing secrecy and giving undue influence to private, corporate actors.

The Cyberlaw Clinic is honored to have represented this amicus and hopes the New Jersey appellate court will take into account their expertise. The brief was written by Fall 2020 clinical students Lauren Fukumoto, Matthew Shields, and Jessica Zhao with supervision from Clinical Instructors Kendra Albert and Mason Kortz.