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Most New Jersey lawyers know that State v. Henderson, 208 N.J. 208 (2011), detailed a test for admitting eyewitness testimony at trial and permitted consideration of accepted social science evidence on the risk of misidentification. Henderson placed New Jersey in the forefront of assuring a fair trial to defendants when identification testimony is involved, And in State v. Chun, 194 N.J. 54 (2008), our Supreme Court had required disclosure of propriety source code information in order to test the reliability of an Alcotest breathalyzer test used to test defendants charged with drunk driving. Following up on that tradition, we are pleased that New Jersey has now assured the same notion with respect to trials involving the introduction of DNA testimony.

On Feb. 3, in State v Pickett, the Appellate Division held that a defendant charged with murder was entitled to access the source codes of DNA software which the prosecutor claimed tied his saliva to the shooting of the homicide victim and injured a child in the same car. The prosecutor sought to tie one of the guns used in the shooting and a ski mask to defendant through use of swabs from the gun and saliva on the mask. The state’s expert designed and utilized the program which established the “statistical probability that a particular individual’s DNA is consistent with data from a given sample, as compared with genetic material from another, unrelated individual from the broader relevant population.” Traditional DNA testing was not conclusive in this case, which involved a “system of software programs developed with the goal of undertaking analysis of … more complex samples…” by use of the “probabilistic genotyping” which analyzes DNA, and which the court said marked “a profound shift in DNA forensics.”

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