Blood typing and DNA testing of biological material have been useful tools in criminal cases to help establish identity or exclude someone as a contributor. However traditional DNA analysis has limitations, particularly in cases of degraded, low level, or mixed DNA samples. Recently, scientists have developed probabilistic genotyping which uses mathematical algorithms, statistical methods, and probability distributions to help interpret DNA samples not able to be interpreted with more traditional methods. Unlike traditional methods, probabilistic genotyping has been empirically tested and peer-reviewed. Probabilistic genotyping relies on computer programs, the instructions for which programs are contained within the source code.

On March 25, 2022, Santa Clara’s High Tech Law Journal held The New Abnormal Data Protection in a More Virtual World symposium at Santa Clara University School of Law. NCIP organized the panel The Secret Code: Balancing Defendants’ Rights with Proprietary Interests in Forensic Analysis, which explored whether criminal defendants should have access to the source code of programs used to analyze forensic evidence. The panelists discussed when access to source code is necessary, alternatives to access to source code in evaluating computer programs, and how to protect proprietary interests for computer program developers.

The panel was moderated by Kelley Kulick, Deputy Public Defender for Santa Clara County, and panelists included Dr. Mark Perlin, Chief Scientist and Executive for Cybergenetics, Rebecca Wexler, Assistant Professor of Law at the University of California Berkeley School of Law, and Charles Tait Graves, Partner at Wilson Sonsini Goodrich & Wilson.