Defendants may be entitled to review proprietary software code used in the prosecution’s expert probabilistic DNA analysis, according to a New Jersey appeals court in New Jersey v. Pickett.

In 2017, defendant Corey Pickett and an accomplice were arrested and charged with first degree murder after they allegedly fired weapons into a crowd, wounding one victim and killing another.  In the course of the arrest, 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.

Because 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.  At this stage, Pickett raised concerns that the code had not been independently reviewed and could likely contain bugs or flaws, and requested TrueAllele’s software code in order 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 disclosed. The trial court denied Pickett’s request.

The appeals court reversed, citing constitutional concerns: “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 relied on substantial amici briefing, including from the New Jersey Attorney General, Legal Aid Society, and the Innocence Project.  Ultimately, the court ordered that the 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 significant were the flaws, that in New York, the state stopped relying on that software altogether.

Ultimately, the effect of the Court’s decision may not be widely felt.  The Court stressed its decision was limited to reliability concerns raised at a Frye hearing, and that even if a defendant could show the method might not be reliable, they would still have the burden of showing a particularized need for the disclosure.  However, the decision makes clear that a third party may be required to provide access to its key trade secrets where those trade secrets may be relevant to the basis for expert analysis in litigation – at least where “[a]n accused individual’s liberty is at stake [because] DNA evidence is powerful and compelling.”

As technology advances, courts are clearly trying to adapt and keep up.  And at least this New Jersey court sees the role that the adversarial system can play in verifying the reliability of emerging scientific methods and technologies.  A role that may sometimes include disclosure of proprietary information.