Associated Incidents
PRELIMINARY STATEMENT AND STATEMENT OF INTEREST
Independent and adversarial review of software used in the
criminal legal system is necessary to protect the courts from
unreliable evidence and to ensure that the introduction of new
technology does not disadvantage the accused. Though such review
has detected outcome-determinative errors in probabilistic
genotyping software in the past, yet TrueAllele has never been
subject to such review. Amicus Upturn respectfully requests that
this Court grant the defense expert reviewer access to
TrueAllele under the terms requested by the defendant. This
access is necessary to determine whether TrueAllele is reliable
enough to be used in this case and to ensure that the
proprietary interests of software developers do not undermine
the integrity of the criminal legal system.
Upturn is a nonprofit organization based in Washington, D.C.
that seeks to advance equity and justice in the design,
governance, and use of technology. Upturn frequently presents
its work in the media, before Congress and regulatory agencies,
and before the courts in briefs like this one. Upturn has an
interest in seeing that forensic technology is not deployed in a
way that promotes private interests at the expense of fairness
and justice in the criminal legal system.
PROCEDURAL HISTORY AND STATEMENT OF FACTS
Amicus Upturn relies on the procedural history and statement
of facts as presented by the defense.
2
ARGUMENT
I. TrueAllele combines forensic science and software engineering,
each of which has its own risks and histories of failure.
Cybergenetics's DNA analysis software, TrueAllele, implements
probabilistic genotyping in computer code to attempt forensic
identification. One can think of TrueAllele as having three
layers, each of which has its own points of failure. The first
point of failure of TrueAllele is its complex and novel
scientific method—probabilistic genotyping. The second point of
failure is the statistical models, developed by Cybergenetics
itself, through which TrueAllele carries out the probabilistic
genotyping analysis. The third point of failure of TrueAllele is
software code, authored by Cybergenetics itself, that implements
the probabilistic genotyping algorithms. Failure at any of these
points may have harmful, and even fatal, consequences.
A. Flawed forensic science has been used to convict and execute
defendants before being subjected to appropriate scrutiny.
The first point of failure for software like TrueAllele is the
scientific basis it uses to draw evidentiary conclusions. Here,
there are many reasons to be cautious. Numerous evidentiary
techniques, initially hailed as groundbreaking and relied on in
criminal convictions, have been either found to have significant
errors or completely debunked. Arson science used to secure the
death sentence of Cameron Todd Willingham was “scientifically
proven to be invalid” by both a government commission and an
independent review by a panel of fire experts, but only after he
had been executed. David Grann, Trial by Fire, The New Yorker
3
(Aug. 31, 2009).1 The resulting national uproar and fundamental
reexamination of arson science led to the exoneration of Texas
inmate Ed Graf, but only after Graf had already served 26 years
in prison. Jeremy Stahl, The Trials of Ed Graf, Slate (Aug. 16,
2015).2 And in 2015, the FBI formally acknowledged flaws in its
forensic hair analysis used in thousands of trials spanning a
period of over two decades. Spencer S. Hsu, FBI Admits Flaws in
Hair Analysis over Decades, Wash. Post (Apr. 18, 2015).3 This
flawed analysis was used against thirty-two people who were
sentenced to death, fourteen of whom had already been executed
or died in prison. Ibid. This history of flawed forensic science
underscores that new forensic methods, such as probabilistic
genotyping, must be subject to rigorous review to prevent
wrongful convictions and executions.
B. Software engineering can independently introduce fatal flaws
even when the underlying scientific methods are sound.
Software can allow more efficient and comprehensive data
analysis—but it can also be biased, faulty, or completely
ineffective. At the design stage, the process of creating
software necessarily includes decisions and assumptions.
1 https://www.newyorker.com/magazine/2009/09/07/trial-by-fire.
2 http://www.slate.com/articles/news_and_politics/jurisprudence/
2015/08/ed_graf_arson_trial_texas_granted_him_a_new_trial_would_
modern_forensic.html. 3 https://www.washingtonpost.com/local/crime/fbi-overstatedforensic-hair-matches-in-nearly-all-criminal-trials-fordecades/2015/04/18/39c8d8c6-e515-11e4-b510-
962fcfabc310_story.html.
4
TrueAllele is no exception. It is these differing design
decisions that have resulted in variability in conclusions
across probabilistic genotyping software. For example, in a New
York case TrueAllele and another probabilistic genotyping
software produced different conclusions on the defendant’s guilt
for the same mixed DNA sample. President's Council of Advisors
on Science and Technology (PCAST), Report to the President:
Forensic Science in Criminal Courts: Ensuring Scientific
Validity of Feature-Comparison Methods 78 n.212 (2016)
[hereinafter PCAST Report].4 This is not a flaw by itself;
Cybergenetics should design their own models and write their own
code to implement probabilistic genotyping. In fact, these
design and programming choices are the precise reason why
TrueAllele’s developers want to safeguard their code. However,
the defense must have access to information about these design
choices because they can influence ostensibly objective results.
For example, the Forensic Statistical Tool, a peer to
TrueAllele, was found in a 2016 source code review to have a
hidden function that tended to overestimate the likelihood of
guilt. See Stephanie J. Lacambra et al., Opening the Black Box:
Defendants' Rights to Confront Forensic Software, NACDL: The
Champion (May 2018). Without independent review of TrueAllele’s
source code, there is no guarantee that TrueAllele does not have
4 https://obamawhitehouse.archives.gov/sites/default/files/
microsites/ostp/PCAST/pcast_forensic_science_report_final.pdf.
5
similar outcome-determinative functions that may also lead to
wrongful convictions and potentially fatal consequences.
Even when software is not designed with faulty assumptions,
unintentional errors can significantly impact the software’s
performance. Just this year, the UK’s Most Serious Violence
tool, a flagship artificial intelligence system designed to
predict future gun and knife violence, was found to have coding
flaws that experts concluded made it unusable. Matt Burgess,
Police Built an AI to Predict Violent Crime. It Was Seriously
Flawed, Wired (Aug. 6, 2020).5 After discovery of a coding error
that caused training data to be improperly ingested, the system,
originally claimed by its developer to be up to seventy-five
percent accurate, was demonstrated to be less than twenty
percent accurate. Ibid. And in 2015, investigators in Australia
encountered an error in their use of STRmix, a probabilistic
genotyping software program intended to resolve mixed DNA
profiles similar to TrueAllele. David Murray, Queensland
Authorities Confirm ‘Miscode’ Affects DNA Evidence in Criminal
Cases, The Courier Mail (Mar. 20, 2015).6 The error produced
incorrect results in at least sixty criminal cases, including a
high-profile murder case. Ibid. This is especially concerning
given STRmix’s striking similarities to TrueAllele—both are
5 https://www.wired.co.uk/article/police-violence-predictionndas.
6 https://www.couriermail.com.au/news/queensland/queenslandauthorities-confirm-miscode-affects-dna-evidence-in-criminalcases/news-story/833c580d3f1c59039efd1a2ef55af92b.
6
forensic identification software systems that use probabilistic
genotyping.
C. Allowing companies to shield their software from review
increases the risk of undetected failures.
As New Jersey courts have recognized across other contexts,
there is no substitute for independent and searching review to
find flaws in software that puts people’s lives at stake. When
such testing is not permitted, the consequences are disastrous.
Perhaps the most striking recent example is the failure of the
Boeing 737 Max 8 airplanes in 2018 and 2019, which killed 346
people and led to the grounding of over 300 737 Max passenger
jets worldwide. Boeing was able to evade independent review—a
cautionary tale that shows the consequences of letting financial
concerns take priority over human life. The Federal Aviation
Administration (FAA) did not thoroughly test Boeing’s new
Maneuvering Characteristics Augmentation System (MCAS) software
because Boeing stated the software was not “safety critical.”
This software, designed to counteract the weight of new, larger
engines, ultimately malfunctioned and led to two crashes. The
FAA should have served as an independent inspector, but
delegated too much of its responsibility to Boeing itself. See
Committee on Transportation and Infrastructure, Final Committee
Report: The Design, Development, and Certification of the Boeing
737 Max 57 (Sep. 15, 2020). Boeing was thus able to conceal
internal flight simulation testing data that showed pilots took
more than twice the time to mitigate an MCAS activation than
7
federal guidelines allow for. Ibid. at 13 & n.66. A technical
review found that the FAA was “unable to independently assess
the adequacy . . . of MCAS, which was a new and novel feature
that should have been closely scrutinized. Had FAA technical
staff been fully aware of the details of MCAS, they would have
likely identified the potential for the system to overpower
other flight controls, which was a major contributing factor
leading to the two MAX crashes.” Id. at 66–67. Like Boeing,
TrueAllele has relied upon self-validation: the main developer
of TrueAllele, Mark Perlin, has co-authored the majority of the
validation studies done on TrueAllele. In fact, there has never
been a complete external review of TrueAllele’s source code, nor
has there ever been independent and adversarial testing of
TrueAllele’s software to see how it performs under different
conditions. Whether Cybergenetics is aware of flaws in
TrueAllele or not, without independent review, defects in
TrueAllele may go unidentified just in Boeing’s MCAS.
The lack of independent external review in both cases is
enabled by the failure of safeguards meant to prevent such
cases. Regulatory capture in the aerospace industry led to
Boeing’s dedicated FAA reviewers failing to scrutinize the 737
Max thoroughly, in some instances bringing up concerns with
Boeing but failing to include those concerns in their report to
the FAA itself. Id. at 69–70. In the criminal legal system,
rather than a regulatory body, courts and the adversarial
process are the safeguards meant to ensure that evidence
8
generated by new technologies is reliable and appropriately
used. To uphold its role as a safeguard against wrongful
convictions based on questionable evidence, this Court must
ensure TrueAllele is thoroughly tested and scrutinized.
This Court should also consider the incentives that
Cybergenetics has to shield its technology from review. Perlin
has testified that Cybergenetics has invested millions in
TrueAllele, and that allowing independent review would pose an
unacceptable financial risk. See Decl. of Mark W. Perlin, at ¶
68, Washington v. Fair, No. 10-1-09274-5 SEA (Sup. Ct. King
Cnty. Wash.). Cybergenetics has placed untenable limitations on
defense access to TrueAllele’s source code, even under a
protective order, because its code constitutes trade secrets.
But the Boeing example has shown that, when a company is acting
based on monetary interests, harmful trade-offs may be made
between profit and safety or reliability. In the criminal legal
system in particular, TrueAllele’s monetary and proprietary
interests to shield its technology from review should not
outweigh the liberty interests at stake for defendants convicted
based on TrueAllele-produced evidence.
II. Each aspect of TrueAllele must be subject to independent
and adversarial review to ensure its reliability.
In New Jersey, the standard for admitting new scientific
evidence in criminal cases centers around the question of
“reliability.”. See State v. Chun, 194 N.J. 54 (2008). For
TrueAllele, this question cannot be properly addressed without
9
independent and adversarial review. TrueAllele’s first and
second layers—the underlying method and statistical models—must
be subject to independent validation studies to determine the
reliability of the underlying method as well as TrueAllele’s
specific approach and its limitations. For the third layer—
TrueAllele’s implementation in software—in addition to testing,
direct source code review is necessary to trace how design
specifications were implemented and to identify errors.
A. The reliability of TrueAllele’s approach to probabilistic
genotyping has only been partially addressed through existing
validation studies.
Even aside from issues of self-validation, software validation
and developmental validation of forensic methods are different.
Although validation studies may be able to determine the
validity of a scientific method, and perhaps even prevent
against failures in translating assumptions to software code,
they cannot fully guard against either coding or user error. For
example, validation studies are performed on specific versions
of the software. It is common for errors in coding to be
introduced when new versions are released.
The version of the TrueAllele software used in Mr. Pickett’s
case postdates every one of the validation studies cited in the
report prepared by Cybergenetics, as well as those cited in the
initial state’s brief in favor of the admission of TrueAllele.
Da19-21. None of the peer-reviewed studies listed as part of the
state’s appendix appear to be performed on the version of the
10
VUIer client (which is responsible for the match statistic) used
in this case. Ra454-55. Prior validation studies cannot replace
source code review because subsequent source code versions may
introduce new errors not present when validation was completed.
B. TrueAllele’s source code has not been independently reviewed.
Independent review of TrueAllele’s source code is a basic,
necessary step to ensuring that TrueAllele is reliable. See
Darrel C. Ince et al., The Case for Open Computer Programs,
Nature (Feb. 22, 2012) (explaining that “anything less than the
release of source programs is intolerable for results that
depend on computation”). Specifically, this level of review is a
necessary condition of ensuring the software is properly
implementing a program’s design specifications and that the code
is devoid of bugs that could affect the software’s output. See
Lacambra et al., at 32 (stating “programmed assumptions . . .
must be reviewed at the source code level for reliability and
accuracy”). The code in TrueAllele has never been scrutinized by
any party outside of Cybergenetics. See Natalie Ram, Innovating
Criminal Justice, 112 Nw. U. L. Rev. 659, 661 (2018) (noting
that “no one outside of Cybergenetics—Perlin’s company—has seen
or examined that source code”). However, adversarial and
independent source code review—particularly when performed by a
defense expert—is a necessary safeguard that prevents
probabilistic genotyping programs from doing serious harm.
Despite its limitations, source code review was able to catch
11
errors in the Forensic Statistical Tool (FST), the
aforementioned probabilistic genotyping program formerly used in
New York. In the course of a murder trial, the court granted a
defense expert full access to the program’s source code. See
Lauren Kirchner, Where Traditional DNA Testing Fails, Algorithms
Take Over, ProPublica (Nov. 4, 2016).7 This analysis produced two
alarming observations. First, the code did not seem to be
implementing the methods and models that were used in FST’s
validation studies. See Jessica Goldthwaite et al., Mixing It
Up: Legal Challenges to Probabilistic Genotyping Programs for
DNA Mixture Analysis, Champion (May 2018) at 12, 15 (noting
“disturbing differences between what FST was initially
advertised to be and what is actually being used in criminal
casework”). Second, there seemed to be coding errors that caused
results to favor the prosecution’s theory of the case. See id.
This is why it is so important that New Jersey, as it has in
the past, compel the release of proprietary source code to
defense experts to prevent the potential damage new, unchecked
technologies can cause. In a move aimed to protect the integrity
of evidence obtained through the Alcotest 7110 breathalyzer, the
Supreme Court of New Jersey compelled the breathalyzer’s maker,
Draeger Safety Diagnostics, to release its source code to
defense experts. See Chun, 194 N.J. 54 (2008). In 2018, New
7 https://www.propublica.org/article/where-traditional-dnatesting-fails-algorithms-take-over.
12
Jersey courts again took action to preserve the integrity of
trial evidence, addressing calibration issues in Draeger
technology used to obtain DWI convictions. See State v. Cassidy,
235 N.J. 482 (2018). Unlike Alcotest, TrueAllele has been
subject to peer-reviewed studies and Cybergenetics allows for
some inspection and review. But the proposed review conditions
are inconsistent with determining reliability. In light of the
gravity of these possible errors, this Court should move
similarly to act as a steward of emerging forensic technologies
and to subject TrueAllele to independent and adversarial review.
III. Admitting TrueAllele as scientific evidence into the New
Jersey criminal court system without independent and
adversarial review will harm the administration of justice.
In the criminal court system, the “gatekeeping” function of
judges works in tandem with later procedural safeguards such as
cross-examination and discovery rights to ensure that the
accused is adequately protected from questionable evidentiary
technology. Thus, requiring independent and adversarial review
in the Frye hearing stage is not simply an option, but rather a
necessity to preserve the integrity of the court system and the
rights of defendants. Frye v. United States, 293 F. 1013 (D.C.
Cir. 1923). New Jersey’s emphasis on reliability as the standard
for admitting new scientific evidence in criminal cases creates
the obligation for judges to act as gatekeepers by excluding
unreliable scientific evidence from criminal proceedings. New
Jersey courts have historically embraced this role, even going
13
so far as to vacate prior convictions based on questionable
scientific evidence en masse to preserve the interest of
justice. See, e.g., Cassidy, 235 N.J. at 497 (holding that over
20,000 cases relying on potentially unreliable breathalyzer
testing needed to be re-opened). The current question before the
Court is not whether TrueAllele is scientifically valid, but
rather whether, given the evidence in Parts I and II of this
brief and the court’s considerations of the administration of
justice, TrueAllele can be adequately determined to be reliable
without independent and adversarial review including full source
code access. Upon consideration of the balance between private
parties’ interests and defendants’ rights, it becomes clear that
TrueAllele must be thoroughly reviewed, not just rubber stamped.
A. Admitting scientific evidence without independent and
adversarial testing incentivizes secrecy and gives undue
influence to private, corporate actors.
Although independent and adversarial review is functionally
necessary to assess the reliability of new scientific evidence,
trade secrets are often invoked to combat attempts at
independent and adversarial review. Although often portrayed as
protective measures, trade secrets should not be prioritized
over considerations of justice. See Rebecca Wexler, Life,
Liberty, and Trade Secrets: Intellectual Property in the
Criminal Justice System, 70 Stan. L. Rev. 1343, 1358–71 (2018)
(noting how trade secret protections have led to increased
secrecy and difficulty for defendants throughout the criminal
14
legal system). Corporations, which prioritize profits and
competitive advantage, often argue that trade secrets are
necessary for business interests. However, the idea that courts
cannot protect both criminal defendants and corporate actors is
a false dichotomy in light of existing procedural safeguards
that can appropriately protect both private interests and the
administration of justice. To faithfully conduct a Frye
reliability analysis, independent and adversarial review and
testing should not be impeded by trade secret protections.
Rather, all relevant materials should be available to reviewing
experts, with appropriate procedural safeguards in place.
While the doctrine of trade secrecy has sometimes been used
reasonably in cases of extreme business need, the tendency of
companies today is to “change the traditional function of trade
secrecy from protecting against a competitor’s misappropriation
to a function that impedes public investigation.” See Sonia K.
Katyal, The Paradox of Source Code Secrecy, 104 Cornell L. Rev.
1183, 1246 (2019). This is particularly inappropriate in a Frye
hearing analysis since it creates a “contradictory paradox of
source code secrecy: on one hand, companies argue that their
methods are sufficiently known and proven to be broadly accepted
by the scientific community and yet, on the other hand,
companies will go to enormous lengths to keep their source code
confidential so as to preclude further investigation.” Id. at
1242–43. This tendency of trade secret protections towards
advancing secrecy at the expense of crucial analysis like
15
independent and adversarial testing is at odds with the aims of
the criminal legal system—a system built upon revelation and
truth seeking for the advancement of justice.
The emphasis on business prospects also leads companies to
protect their interests through extreme penalties, further
discouraging independent review and distorting the end goal of
justice. In this case, the prosecution suggested a $1,000,000
liability if any “proprietary materials are improperly handled,
negligently or otherwise.” Da235. The State’s concern for
Cybergenetics’s business prospects and the large monetary
penalty warp the incentives of parties and detract from the
central issue of finding and administering justice.
Additionally, the State’s attempt at imposing financial risk
through a large monetary penalty without a clear definition of a
breach highlights the undue influence that a corporation like
Cybergenetics can have on criminal proceedings.
Asserting a trade secret privilege in order to avoid
independent and adversarial review produces the precise
injustice that the New Jersey criminal court system seeks to
avoid. New Jersey’s law on trade secret privilege in the
criminal court system rejects any trade secret privilege that
will “tend to conceal fraud or otherwise work injustice.”
N.J.S.A. 2A:84A-26. From a procedural standpoint, concealing
information in a criminal case produces fundamental injustice
because it stifles a defendant’s rights and inhibits the
adversarial methodology of the court system. Recognizing this
16
tendency, the United States Supreme Court has said “evidentiary
privileges must be construed narrowly because privileges impede
the search for the truth.” Pierce County v. Guillen ex rel.
Guillen, 537 U.S. 129, 144 (2003). Courts have recognized that
trade secrets are not wholly independent concerns, prioritized
above all other legal analysis, but rather, considerations that
must not take precedence over substantial justice and an overall
search for the truth. Therefore, trade secrets should only be
invoked when they are absolutely necessary and do not impede the
overall goals of the judicial system.
Traditionally, trade secret protections were intended to
prevent malicious or accidental disclosures of vital information
that could hurt a business prospect. These considerations have
little relevance in the context of good-faith independent and
adversarial review, aimed at investigating the reliability of
the technology itself. Even if a court finds that disclosure is
a valid concern, there are better ways to protect proprietary
information than blocking source code review. Since source code
is routinely produced during discovery in civil cases,
“litigators have ready-made tools at their disposal to address
the merit of software related disputes while ensuring that
source code remains protected and yet disclosed in a litigation
dispute.” Katyal, at 1275–76. For example, New Jersey courts can
issue protective orders to protect source code from disclosure.
Thus, blocking production of key information needed to verify
scientific evidence in a criminal court case on the basis of
17
trade secrets is not only a questionable prioritization of
property over liberty, but also an unnecessary choice.
B. Allowing trade secrecy to prevent review violates the
procedural rights of this defendant and future defendants.
Admitting scientific evidence without independent and
adversarial review at the Frye hearing stage can hinder a
defendant’s ability to mount a defense and confront the basis of
the prosecution’s evidence in the subsequent criminal
proceedings. Historically, New Jersey has prioritized
defendants’ rights in the context of considering new scientific
evidence at every stage of criminal proceedings beginning with
the Frye hearing. Although a defendant’s rights are balanced
against other interests, New Jersey law has consistently
recognized the centrality of a defendant’s potential loss of
liberty in this analysis. Since reliability is the underlying
evaluation in a New Jersey Frye hearing, access to every piece
of information that may inform such a reliability assessment
about the new scientific evidence should be considered.
Admitting scientific evidence without independent and
adversarial review at the Frye hearing stage may not only allow
unreliable evidence but also directly undermine other safeguards
in the criminal legal system. Procedural safeguards in later
parts of the criminal process afford defendants the opportunity
to challenge admitted evidence. See Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 596 (1993) (“Vigorous
cross-examination, presentation of contrary evidence, and
18
careful instruction on the burden of proof are the traditional
appropriate means of attacking shaky but admissible evidence.”).
However, these subsequent safeguards are not always adequate.
Defendants can experience substantial difficulty challenging
“shaky evidence” when the inner workings of the tools that
produced such evidence are not fully known. See State in
Interest of A.B., 219 N.J. 542 (2014) (noting that “[a] criminal
trial where the defendant does not have access to the raw
materials integral to the building of an effective defense is
fundamentally unfair” (internal quotations omitted)). For one
thing, once evidence has been admitted, the onus is flipped to
the defendant to compel discovery with a subpoena and argue the
defense’s necessity for this particular portion of information—
the exact opposite of what the Daubert court had envisioned. See
Katyal, at 1245. Moreover, the same trade secret protections
that create opacity during a Frye hearing can continue to
prohibit analysis at later stages of the criminal process. Thus,
subsequent opportunities to address and attack the unreliability
or secrecy of new scientific technology are never guaranteed to
a defendant after the Frye hearing stage. Since a lack of
independent and adversarial review at the Frye hearing stage
cannot be replaced by subsequent procedural safeguards, the
gatekeeping function of judges at the Frye hearing stage is
fundamental to procuring justice.
The benefits of independent and adversarial review of forensic
technologies extend beyond the life of a criminal case as well.
19
Rigorous scrutiny during a Frye hearing can help prevent future
litigation if a technology is later proven to have been
inaccurate. Not only is this desirable from a judicial economy
perspective, vetting for inaccuracies at an early stage in
litigation can also preventively protect against wrongful
convictions, preserving both the court’s integrity and future
defendants’ rights. In Cassidy, rigorous scrutiny of
breathalyzer technology proved the test to be unreliable,
causing the re-opening of 20,000 cases. See Cassidy, 235 N.J. at
- While the Supreme Court of New Jersey’s decision to remedy
this injustice regardless of the administrative burden on the
system is admirable, adequate scrutiny during earlier stages of
the court proceedings could have prevented the need for relitigation altogether. Catching errors at the first possible
opportunity is particularly crucial within the criminal legal
system, since re-litigation cannot always remedy the damages
caused by admitting inaccurate scientific evidence. For example,
in a 2018 study, the National Registry of Exonerations
determined that the known false convictions in the United States
since 1989 totaled 20,080 years behind bars. See Radley Balko,
Report: Wrongful Convictions Have Stolen at Least 20,000 Years
from Innocent Defendants, Wash. Post (Sept. 10, 2018).8
Furthermore, in a legal system that has already been scrutinized
8 https://www.washingtonpost.com/news/opinions/wp/2018/09/10/
report-wrongful-convictions-have-stolen-at-least-20000-yearsfrom-innocent-defendants/.
20
for its wide racial and economic disparities, issues of fairness
are inherently issues of equity as well. See, e.g., Radley
Balko, 21 More Studies Showing Racial Disparities in the
Criminal Justice System, Wash. Post (Apr. 9, 2019).9 Therefore,
early application of independent and adversarial testing in the
Frye hearing stage can be beneficial in terms of judicial
economy and prevents perpetuation of future injustice.
CONCLUSION
Novel forensic methods and software used in the criminal legal
system and other high-stakes contexts that have not been subject
to sufficient review have historically had incredibly harmful
consequences. For probabilistic genotyping in particular, STRmix
and FST have both been revealed to have outcome-determinative
errors. In the case of FST these errors were identified through
independent source code review by the defense. While there is
also a larger question of whether probabilistic technology
should be used in the criminal legal system at all, cf. Emily
Berman, Individualized Suspicion in the Age of Data, 105 Iowa L.
Rev. 263 (2020), at minimum, the court should utilize its
gatekeeping role in the Frye hearing stage to require
independent and adversarial review of TrueAllele, including its
source code, in the interest of preserving the integrity of the
New Jersey criminal legal system.