DNA Software Claims to Prevent Wrongful Convictions, but Lacks Third-Party Validation

The Innocence Project at Cardozo Law School reports 337 post-conviction exonerations in the U.S. since 1989. But damage done to the wrongly convicted cannot be undone. Time served by all 337 people exonerated totals almost 4,606 years, a per person average of 14 years in prison. The Innocence Project reports that the real perpetrators were identified in 166 of the DNA exoneration cases. But while innocent people were behind bars, those 166 went on to commit 146 additional crimes.

More than half of these wrongful convictions were due to improper forensic science at trial. 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.

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.

Quantitatively, TrueAllele seems to be more reliable in probability modeling than typical methods used by forensics labs. However, the support for this claim consists only of peer-reviews and mock tests done by Cybergenetics. Its TrueAllele Mixture Validation in 2010 seems to satisfy state courts. This groundbreaking technology helped convict criminals in over 500 cases in the past five years, with the majority of those convictions occurring last year.

Currently, states lack regulations of the use of evidence provided by TrueAllele. In Pennsylvania, this is demonstrated by the Michael Robinson murder case. Counsel for Robinson, accused of killing two men in 2013, was denied access to the TrueAllele source code last month. 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 that access to the programming code is necessary in order to cross-examine Mark Perlin, founder of Cybergenetics and TrueAllele's creator. Defense attorneys have asked the Pennsylvania Superior Court to reverse the trial judge's decision. They state, "without production and defense review of the computer instructions, not only will the petitioner be denied his constitutional right to a fair trial--he risks being wrongly executed."

In her ruling, Judge Jill Rangos stated, "An order requiring Cybergenetics to produce the source code would be unreasonable, as release would have the potential to cause great harm to Cybergenetics." Cybergenetics would lose a lot of money to competitors if it made the source code public.

But without the code, there is no way of verifying that TrueAllele is as accurate as Cybergenetics claims. Perhaps Cybergenetics should be required to release the source code after the court orders a nondisclosure order protecting the software. Despite benefits for cases involving mixed DNA evidence, TrueAllele could promote wrongful convictions--even though it's meant to prevent them. This highlights the need for regulations in the state court systems regarding TrueAllele.