A team of Sidley lawyers helped secure a groundbreaking ruling from a New Jersey appellate court protecting the rights of criminal defendants to understand and challenge the state’s evidence against them. In a case of “first impression” in New Jersey, the Appellate Division in State v. Pickett held that an expert witness presenting evidence produced by TrueAllele, a black-box probabilistic genotyping program, must disclose the source code and other proprietary materials to the defendant for scrutiny.
TrueAllele, developed by Cybergenetics, purports to conduct extraordinarily complex mathematical computations to analyze DNA samples that cannot be analyzed by traditional methods. Criminal defendants in other states have been denied access to TrueAllele’s source code, which Cybergenetics says is a trade secret, but similar software programs have been found to have serious errors that rendered their forensic results unreliable. The New Jersey decision makes clear that defendants are entitled to independently vet TrueAllele in order to confirm its reliability.
Sidley represented computer science professors Jeanna Matthews and Mats Heimdahl as amici curiae in the case, and filed a brief explaining that TrueAllele — like any other complex software program — almost certainly contains undiscovered flaws that can only be identified by a thorough review of its source code. The court’s opinion relied heavily on Sidley’s brief and oral argument. As the court noted, Drs. Matthews and Heimdahl argued that the “reliability of the TrueAllele software cannot be evaluated without full access to ‘executable source code and related documentation,’ something that no one to date has seen. They contend that doing so is not only prudent, but essential to determining whether TrueAllele operates as Cybergenetics claims, which is fundamental to any fair, legitimate, and impartial assessment of reliability.” Agreeing with this reasoning, the court concluded that, without access to the source code, a defendant “is relegated to blindly accepting” the developer’s claims regarding TrueAllele’s reliability. “Hiding the source code is not the answer,” the court continued. “Intellectual property law . . . was never meant to justify concealing relevant information from parties to a criminal prosecution.”
The Sidley team working on behalf of Drs. Matthews and Heimdahl included Gordon Todd, Dino LaVerghetta, Lucas Croslow, Matthew Hopkins, and Iain Armstrong, all in Washington, D.C.