Tuesday, March 2, 2021

Discovery: DNA source code v. Sixth Amendment

 TrueAllele is probabilistic genotyping  (DNA) software that prosecutors sometimes rely on when traditional DNA testing is inconclusive. Probabilistic DNA testing can run different variations or hypothesis on small or complex DNA mixtures. Cybergenetics, which owns TrueAllele, says “it removes human intervention, error, and bias” to get information “many crime labs can’t.” But how this works—that is, the proprietary source code*−is a protected trade secret.

 When trade secrets clash with the Sixth Amendment, the Sixth Amendment wins. At least it did last week in EDPa in United States v. Ellis. There, the government wants to rely on TrueAllele results as evidence that the defendant’s DNA was on a gun. The government refuses to provide the source code and other data, citing Cybergenetics’ trade-secret claim. The defense sought a subpoena duces tecum, which the government opposed. After ten months of litigation, the federal district court ruled in the defense’s favor, albeit with a protective order. The defense should now be able to determine the basis of the results and, if necessary, challenge the government’s evidence under Daubert.

The ACLU and Electronic Frontier Foundation filed an amicus brief in support of the defense subpoena. From the EFF: “DNA analysis programs are not uniquely immune to errors and bugs, and criminal defendants cannot be forced to take anyone’s word when it comes to the evidence used to imprison them.” Miscoding in STRmix, a TrueAllele competitor, revealed misleading results. On this point, a New Jersey Superior Court opinion issued Feb. 3, 2021, State v. Corey Pickett, observed,

The defense expert's access to the [TrueAllele’s] proprietary information is directly relevant to that question and would allow that expert to independently test whether the evidentiary software operates as intended. Without that opportunity, defendant is relegated to blindly accepting the company's assertions as to its reliability.  

 Takeaway: challenge science that relies on proprietary software, such as DNA or facial recognition or location-monitoring. And Tom Bartee's reminder:  discovery under a protective order is commonplace in trade secret litigation, so courts should reject the claim that trade secret = not discoverable, period.  

More here and here. Stay tuned for the government’s next move.

 *Source code is the string of commands or instructions that tells the computer how to execute the program.

 -- Melody

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