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16-Feb-2021

Hudson County files motion for reconsideration in New Jersey TrueAllele source code ruling


Jersey City, NJ

The Hudson County Prosecutor's Office filed a motion for reconsideration today in the New Jersey v. Corey Pickett case. On February 3rd, the Superior Court of New Jersey had issued an opinion reversing the trial court's denial of a motion to compel TrueAllele® source code and related materials. Today's State filing asks the Court to reconsider its opinion.

The State argues that "as the opinion in this matter relied on incorrect information and failed to appreciate the significance of probative, competent evidence, the motion for reconsideration should be granted." The State notes "there is little disagreement among scientists in any field" that "science means testing." The brief centers on three main points.

First, the State reviews the facts to conclude "problems documented in FST and STRmix™ were discovered by testing, not source code review, and both programs are valid and continue to be used." The State cites an article by STRmix developers where "the authors noted that they are not aware of any documented example of discovery of a miscode by way of code review."

Second, the State maintains "the Court's reliance on PCAST is improper, inasmuch as PCAST has been denounced by the relevant scientific community." The 2016 report from the President's Council of Advisors on Science and Technology (PCAST) "has been denounced by the forensic science and associated law enforcement community." The FBI noted, "the report makes broad, unsupported assertions regarding science and forensic science practice."

Third, the State writes "the Court improperly disregarded relevant rulings from other jurisdictions in which similar claims regarding TrueAllele source code were rejected, based on hearings which were testimonial and adversarial in nature." The State describes TrueAllele hearings held in Georgia v. Baugh and Howell, Nebraska v. Simmer, Ohio v. Shaw, Pennsylvania v. Robinson, Tennessee v. Watkins, Virginia v. Brady, and Washington v. Fair. No source code hearing has been held in New Jersey v. Pickett.

Cybergenetics makes its TrueAllele software available to defendants at no charge for them to test the program. The company has made its source code available for free inspection under a court protective order. Cybergenetics publishes its algorithms and extensively tests its TrueAllele system. Courts accept TrueAllele as reliable DNA evidence.

The Legal Aid Society and the Innocence Project each filed an amicus curiae brief about source code on behalf of Pickett. Yet Legal Aid has used TrueAllele in over 20 cases; Cybergenetics helps them defend their clients. And innocence and post-conviction groups have used TrueAllele in almost 50 cases, with Cybergenetics helping to free or exonerate 10 innocent men.

"Evidence laws and the courts safeguard trade secrets, fostering needed innovation that makes the world a better place," wrote Dr. Mark Perlin, Chief Scientist and Executive of Cybergenetics. "Scientific transparency is ensured by disclosing underlying algorithms, sharing testing results, and providing software that others can test. Publicly releasing confidential source code doesn't help assess reliability, because the text isn't used in testing. But its release can wreck an innovative company."

When Cybergenetics invented the TrueAllele technology over 20 years ago, forensic science was failing to interpret most DNA evidence – mixtures of two or more people. Hundreds of thousands of cases were affected. TrueAllele brought accurate, unbiased DNA evidence into criminal justice. Using better science, police and prosecutors could find true perpetrators, while defendants and innocent people could overcome the awesome power of the state.

Forensic® News has written about the source code dispute in the Pickett case.

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