State v. Pickett

• Citation: 246 A.3d 279,466 N.J.Super. 270
• Decision Date: 03 February 2021
• Docket Number: DOCKET NO. A-4207-19T4
• Parties: STATE of New Jersey, Plaintiff-Respondent, v. Corey PICKETT, Defendant-Appellant.
• Court: New Jersey Superior Court – Appellate Division

466 N.J.Super. 270

246 A.3d 279

STATE of New Jersey, Plaintiff-Respondent,

v.Corey PICKETT, Defendant-Appellant.

DOCKET NO. A-4207-19T4

Superior Court of New Jersey, Appellate Division.

Argued January 19, 2021

Decided February 3, 2021

Tamar Y. Lerer, Assistant Deputy Public Defender, argued the cause for appellant (Joseph E. Krakora, Public Defender, attorney; Tamar Y. Lerer, of counsel and on the briefs).

Stephanie Davis Elson, Assistant Prosecutor, argued the cause for respondent (Esther Suarez, Hudson County Prosecutor, attorney; Stephanie Davis Elson, of counsel and on the briefs).

Amanda G. Schwartz, Deputy Attorney General, argued the cause for amicus curiae Attorney General of New Jersey (Gurbir S. Grewal, Attorney General, attorney; Amanda G. Schwartz, of counsel and on the brief).

Karen Thompson argued the cause for amicus curiae American Civil Liberties Union of New Jersey and Electronic Frontier Foundation (American Civil Liberties Union of New Jersey, Kit Walsh (Electronic Frontier Foundation) of the California and Massachusetts bars, admitted pro hac vice, and Hannah Zhao (Electronic Frontier Foundation) of the New York bar, admitted pro hac vice, attorneys; Karen Thompson, Alexander Shalom, Jeanne LoCicero, Kit Walsh and Hannah Zhao, on the joint brief).

Christopher D. Adams, Holmdel, argued the cause for amicus curiae The Association of Criminal Defense Lawyers of New Jersey (Greenbaum, Rowe, Smith & Davis LLP, attorneys; Christopher D. Adams, of counsel and on the brief; Abdus-Sami M. Jameel, on the brief).

Dana M. Delger (Innocence Project Inc.) of the New York bar, New York, NY admitted pro hac vice, argued the cause for amicus curiae The Innocence Project (Dana M. Delger (Innocence Project Inc.) of the New York bar, admitted pro hac vice, Mazraani & Liguori, LLP, Michael A. Albert (Wolf, Greenfield & Sacks, P.C.) of the Massachusetts bar, admitted pro hac vice, and Anant K. Saraswat (Wolf, Greenfield & Sacks, P.C.) of the Massachusetts bar, Boston, MA admitted pro hac vice, attorneys; Dana M. Delger, Joseph M. Mazraani, North Brunswick, Michael A. Albert and Anant K. Saraswat, on the brief).

Dino L. LaVerghetta (Sidley Austin LLP), of the District of Columbia and New York bars, Washington, DC, admitted pro hac vice, argued the cause for amici curiae Drs. Mats Heimdahl and Jeanna Matthews (Coughlin Duffy LLP, Dino L. LaVerghetta, (Sidley Austin LLP) of the District of Columbia and Virginia bars, admitted pro hac vice, and Iain C. Armstrong (Sidley Austin LLP) of the District of Columbia and Virginia bars, admitted pro hac vice, attorneys; Dino L. LaVerghetta, Iain C. Armstrong, Washington, DC, Matthew Hopkins, Morristown, and Mark K. Silver, Washington, DC, on the brief).

J. David Pollock, attorney for amicus curiae The Legal Aid Society.

Singer & Fedun, LLC and Kendra K. Albert (Cyberlaw Clinic, Harvard Law School) of the Massachusetts bar, admitted pro hac vice, attorneys for amicus curiae Upturn, Inc. (William Singer and Kendra K. Albert, on the brief).

Before Judges Fasciale, Rothstadt and Susswein.

The opinion of the court was delivered by

FASCIALE, P.J.A.D.

In this case of first impression addressing the proliferation of forensic evidentiary technology in criminal prosecutions, we must determine whether defendant is entitled to trade secrets of a private company for the sole purpose of challenging at a Frye ¹ hearing the reliability of the science underlying novel DNA analysis software and expert testimony. At the hearing, the State produced an expert who relied on his company's complex probabilistic genotyping software program to testify that defendant's DNA was present, thereby connecting defendant to a murder and other crimes. Before cross-examination of the expert, the judge denied defendant access to the trade secrets, which include the software's source code and related documentation.

This is the first appeal in New Jersey addressing the science underlying the proffered testimony by the State's expert, who designed, utilized, and relied upon TrueAllele, the program at issue. TrueAllele is technology not yet used or tested in New Jersey; it is designed to address intricate interpretational challenges of testing low levels or complex mixtures of DNA. TrueAllele's computer software utilizes and implements an elaborate mathematical model to estimate 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. For this reason, TrueAllele, and other probabilistic genotyping software, marks a profound shift in DNA forensics.

TrueAllele's software integrates multiple scientific disciplines. At issue here—in determining the reliability of TrueAllele—is whether defendant is entitled to the trade secrets to cross-examine the State's expert at the Frye hearing to challenge whether his testimony has gained general acceptance within the computer science community, which is one of the disciplines. The defense expert's access to the proprietary information is directly relevant to that question and would allow that expert to independently test whether the evidentiary software operates as intended. Without that opportunity, defendant is relegated to blindly accepting the company's assertions as to its reliability. And importantly, the judge would be unable to reach an informed reliability determination at the Frye hearing as part of his gatekeeping function.

Hiding the source code is not the answer. The solution is producing it under a protective order. Doing so safeguards the company's intellectual property rights and defendant's constitutional liberty interest alike. Intellectual property law aims to prevent business competitors from stealing confidential commercial information in the marketplace; it was never meant to justify concealing relevant information from parties to a criminal prosecution in the context of a Frye hearing.

Requiring access to trade secrets in criminal cases is not new in New Jersey. In State v. Chun, 194 N.J. 54, 64, 66, 68-70, 943 A.2d 114 (2008), our Supreme Court ordered Draeger Safety Diagnostics Inc. (Draeger), the company that produces the Alcotest 7110 breathalyzer, to disclose its proprietary source code for independent review. Outside objective analysis revealed significant source code errors. Id. at 126-32, 943 A.2d 114.

In other jurisdictions, and directly on point here, courts have also made available under protective orders proprietary information of genotyping software, with noteworthy results. For example, as part of a Daubert ² hearing, a federal judge unsealed the source code of Forensic Statistical Tool (FST), a probabilistic genotyping software that had been developed and used by the New York City Office of Chief Medical Examiner (OCME). In 2017, that review demonstrated the software—employed in thousands of criminal prosecutions—was unreliable, did not work as intended, and had to be eliminated. And in 2015, after TrueAllele's competitor, STRmix, was forced to reveal its source code, analysts discovered coding errors that led to misleading results. The analysis of that proprietary information substantially affected the software's reliability. In appropriate circumstances, especially where civil liberties are on the line, independent source-code review is critical when determining reliability at a Frye hearing. These case studies illustrate that software is not immune from error. Fundamental due process and fairness demand access.

We hold that if the State chooses to utilize an expert who relies on novel probabilistic genotyping software to render DNA testimony, then defendant is entitled to access, under an appropriate protective order, to the software's source code and supporting software development and related documentation—including that pertaining to testing, design, bug reporting, change logs, and program requirements—to challenge the reliability of the software and science underlying that expert's testimony at a Frye hearing, provided defendant first satisfies the burden of demonstrating a particularized need for such discovery. To analyze whether that burden has been met, a trial judge should consider: (1) whether there is a rational basis for ordering a party to attempt to produce the information sought, including the extent to which proffered expert testimony supports the claim for disclosure; (2) the specificity of the information sought; (3) the available means of safeguarding the company's intellectual property, such as issuance of a protective order; and (4) any other relevant factors unique to the facts of the case. Defendant demonstrated particularized need and satisfied his burden.

Importantly, the President's Council of Advisors on Science and Technology (PCAST) emphasized that probabilistic genotyping is in its infancy and such "subjective methods" must be subject to "careful scrutiny." President's Council of Advisors on Sci. & Tech., Forensic Science in Criminal Courts: Ensuring Scientific Validity of Feature-Comparison Methods 5 (2016) [PCAST Report ]. We did that here. Specifically, PCAST found in 2016—and pertinent to questions of reliability—that probabilistic genotyping programs should be independently evaluated to determine whether the methods are scientifically valid and, importantly, whether the software itself correctly implements the methods. Id. at 79. The latter has never been done for TrueAllele. Full independent access in an adversarial system is a prerequisite to meaningful cross-examination of the State's expert at the Frye hearing, and essential to the judge's threshold gatekeeping reliability determination of whether the science underlying the proposed expert testimony has "gained general acceptance in the particular field in which it belongs." State v. Harvey, 151 N.J. 117, 169, 699 A.2d 596 (1997) (quoting Frye, 293 F. at 1013-14 ).

We therefore reverse and remand...