by Dale Chappell
DNA testing can be flawed, often in complex ways. However, courts have held that a defendant fighting for his life in court cannot verify if the DNA being used against him was properly tested, because this would require disclosure of the protected trade secrets of the company whose testing algorithms are being used.
The companies that make DNA testing algorithms, such as STRmix and True Allele, don’t have to reveal how their products actually test DNA, and they don’t have to prove that their testing methods are reliable by allowing a defendant to verify the accuracy of the testing methods. Instead, if the company promises that its system is reliable, its word in court is good enough.
The American Civil Liberties Union (“ACLU”) says this is wrong. If defendants cannot confront the witnesses and evidence against them in court, the ACLU says this may violate a defendant’s constitutional right to be able to challenge the evidence against him.
Take Florencio Dominguez, for instance. He was convicted of murder in California, but the DNA results later were found to be inconclusive. The State tried him again, for a third time, but this time using STRmix to test the DNA. Dominguez wants to know if STRmix is reliable and asked the court to allow him to see STRmix’s algorithm source code.
The court agreed, and the State appealed, saying STRmix’s method for testing DNA is secret and protected by law. The ACLU filed an amicus brief on behalf of Dominguez, along with several advocacy groups, in support of disclosing how STRmix tests DNA.
The trial court’s order in Dominguez’s case is rare, however. Most courts have protected the algorithms as “trade secrets” and have denied defendants the chance to ensure the key evidence used against them is reliable and accurate.
The ACLU argues that the Constitution cannot be set aside under the guise of a company’s “trade secrets.” A defendant’s right to a fair trial rests on the outcome of this controversy.
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