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13-Mar-2021

NBC Dateline features the first-ever probabilistic genotyping case – TrueAllele challenge in Pennsylvania v. Foley


Tonight, NBC Dateline reprises "The Premonition" at 8 PM Eastern Time on the NBC Television Network.

The show recounts the true-crime story of Commonwealth of Pennsylvania v. state trooper Kevin Foley, who stood accused of murdering his girlfriend's husband Dr. John Yelenic in 2006 by slashing him to death with a knife in the dentist's Blairsville home.

DNA under Yelenic's fingernails showed a small amount of DNA, 6.7% of a two-person mixture, that pointed to the killer. But failed methods of DNA mixture interpretation derived little identification information from the DNA data – a match statistic of 13 thousand.

For the first time, a scientifically proven way of interpreting DNA mixtures was used in a criminal case. Cybergenetics TrueAllele® software isolated the unknown 6.7% fingernail genotype. Comparing that DNA evidence with Foley's genotype, TrueAllele found an accurate DNA match statistic of 189 billion.

But would the trial court accept this new evidence as reliable? At a 2009 Frye admissibility hearing, Cybergenetics chief scientist Dr. Mark Perlin presented scientific studies demonstrating TrueAllele's reliability. Foley's lawyers argued against the better science.

The fate of forensic DNA science hung in the balance. An admissibility win in Foley would usher in a new era of science-based DNA mixture interpretation. A loss in TrueAllele's first court appearance could doom DNA science, Cybergenetics, and the software to oblivion.

Prosecutor Anthony Krastek later said, "His technique had never been used before in a courtroom or investigative setting, so that was a challenge."

Despite the enormous risks, Krastek put Perlin on the stand. It was the first time Perlin had ever testified in a courtroom. Judge William Martin listened on that wintry February day. Science won. Judge Martin ruled "Based upon a review of the evidence, the Court finds that Dr. Perlin's methodology is admissible pursuant to the Frye rule and Rule 702."

In 2012, the Pennsylvania appellate court affirmed the TrueAllele ruling, finding that "there is no reason to 'impede admissibility of evidence that will aid the trier of fact in the search for truth.'"

"It was very persuasive," said Krastek. "It absolutely helped the case. It was Dr. Perlin that tipped the scales. The fact that there was a DNA match was … absolutely huge. He made clear to me the thresholds used by the FBI and every other DNA lab were arbitrary. They were not scientifically based, and that's what resonated with me."

Dr. Perlin has told the full Foley forensic evidence story in his 2013 book chapter, "The Blairsville slaying and the dawn of DNA computing," published in Andrea Niapas' Death Needs Answers: The Cold-Blooded Murder of Dr. John Yelenic.

Since Foley, TrueAllele has been used by Cybergenetics and crime laboratories to find DNA truth in tens of thousands of criminal cases. TrueAllele's scientific reliability has been upheld in over 25 Frye or Daubert admissibility challenges.

On March 5, 2021, the Sixth Circuit of the United States Court of Appeals reversed a lower court admissibility ruling in United States of America v. Daniel Gissantaner. The appellate Court found another probabilistic genotyping software product to be reliable under the Daubert standard, based on scientific testing and peer review. The ruling mentioned two (of ten) cases where TrueAllele has helped exonerate innocent men.

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