Should Defendants Get Access to TrueAllele's Source Code?

A few days ago, the Huffington Post published a piece on the TrueAllele Casework system. According to the piece,

Cybergenetics, developer of computer automated systems and technology research data analysis, claims its TrueAllele Casework system prevents wrongful convictions by accurately matching the DNA of the perpetrator to the DNA evidence. TrueAllele’s computerized DNA interpretation system excels in situations where human forensics fail—when evidence contains a mix of three or more DNA samples. However, Cybergenetics’ refusal to share the source code behind the software proves problematic in courts. This source code, or programming code, is the key to software function. If Cybergenetics releases the code, its competitors could replicate it. But without the programming code, defense attorneys are unable to challenge the accuracy of TrueAllele. Likewise, prosecutors can’t authenticate it.

That said,

For $60,000, crime labs can buy TrueAllele software. According to Cybergenetics’ TrueAllele Process Overview Video, an analyst first assays the DNA evidence following a typical procedure such as PCR, a DNA amplification process. This DNA evidence can range from bodily fluids to skin cells. After the evidence is scanned, the computer fitted with the TrueAllele software finds the length and quantity of every data peak. Through complex, undisclosed codes and algorithms, the computer separates DNA mixtures into genotypes, solves kinship and paternity, and calculates match statistics.

Apparently, "[t]his groundbreaking technology helped convict criminals in over 500 cases in the past five years, with the majority of those convictions occurring last year." But is it reliable? 

 That was the question raised by Michael Robinson, who has been charged with murder.

Prosecutors used TrueAllele to link Robinson to DNA evidence found on a bandana near the crime scene. TrueAllele found that the DNA was 5.6 billion times more likely to belong to Robinson than to another suspect. If Robinson is convicted, he faces the death penalty. Relying on the Sixth Amendment Confrontation Clause, Robinson’s defense attorneys claim[ed] that access to the programming code is necessary in order to cross-examine Mark Perlin, founder of Cybergenetics and TrueAllele’s creator. 

In an opinion in February, however, a Pennsylvania court denied Robinson's attorneys such access. According to the opinion,

release of the source code would not be reasonable under Pa. R. Crim. Pro. 573 (A). Dr. Mark Perlin, founder of Cybergenetics, stated in his April 2015 Declaration that disclosure of the source code would cause irreparable harm to the company, as other companies would be able to copy the code and potentially put him out of business....An order requiring Cybergenetics to produce the source code would be unreasonable, as release would have the potential to cause great harm to Cybergenetics. Rather than comply, Dr. Perlin could decline to act as a Commonwealth expert, thereby seriously handicapping the Commonwealth's case.

I'm sympathetic to the potential damage that compelled release of the source code could cause to Perlin's business and the State's case. But what about Robinson, who could be given the death penalty if convicted? According to defense counsel,

 “Part of confronting a witness, especially an expert witness, is to be able to know what that expert is doing to arrive at their conclusions. Without the source code, Mr. Robinson cannot exercise his Sixth Amendment right.”

He's not alone in these concerns.

Courts in at least seven states have admitted TrueAllele results as evidence, against objections by defense lawyers whose clients have been linked to crimes by the software.

Pennsylvania will not be the exception. Robinson later withdrew his appeal of the court's ruling.

After reviewing everything related to TrueAllele, I think it is probably reliable. But is "probably" good enough?

-CM