Case Review: DNA Company Trade Secrets Disclosed for Expert Testimony

When novel scientific evidence is offered as expert testimony, the reliability of the evidence must be established even if it requires the disclosure of trademark secrets and intellectual property.

State of New Jersey v. Corey Pickett

On February 3, 2021, the New Jersey Appellate Division rendered a decision that affirms the right of a defendant to challenge the reliability of DNA evidence resulting from a novel scientific testing procedure using trademark-protected genotyping software. This case is significant because it requires the disclosure of information that can be used to challenge the reliability of the methodology used to analyze DNA and the subsequent results.

In State v. Corey Pickett, a case of first impression, two gunmen shot into a crowd, killing one person, and severely injuring another. Police pursued the defendant and a codefendant on foot and arrested them several blocks from the scene of the shooting. While retracing the defendant’s path, police located a .38 caliber revolver and a ski mask.

The CSI Effect

In popular television shows like “CSI: Crime Scene Investigation,” forensic investigators collect samples of blood, saliva, and skin from crime scenes and use the evidence to draw scientific conclusions to solve crimes. While wildly popular and entertaining as “whodunnit” mysteries, these shows have resulted in the phenomenon known as the “CSI effect.” The “CSI effect” has resulted in the belief that forensic crime shows can skew jurors to find forensic evidence inherently reliable and increase a juror’s likelihood to convict.

TrueAllele & New DNA Technology

In Pickett, traditional DNA analysis of genetic material recovered from the .38 caliber revolver and ski mask failed to provide forensic evidence that satisfied the criteria for DNA analysis. The genetic material was then sent to a private laboratory for DNA testing using TrueAllele technology – a methodology that has not been used or tested in New Jersey. TrueAllele computer software utilizes a mathematical model to estimate the statistical probability that a particular individual’s DNA is consistent with a given sample population. In Pickett, the prosecutor sought to present through a witness that TrueAllele software produced DNA results connecting the defendant to the gun and mask, and therefore the crime scene.

Admissibility of Expert Testimony & Frye Hearings

Expert testimony is admissible when it will assist the trier of fact to understand the evidence or to determine a fact in issue. N.J.R.E. 702. For expert testimony, such as that related to scientific evidence to be admissible, the discipline and methodology relied upon by the witness must be sufficiently reliable. In new fields of research, where reliability has not been generally accepted, a Frye hearing is held to determine whether the evidence may be introduced at trial.

Disclosure of DNA Company Trademark Secrets for Expert Testimony

In Pickett, the prosecutor sought to shield information about the development and testing of the TrueAllele DNA software based upon it being trade secret information. In turn, the trial court denied the defendant access to this propriety information.

On appeal, the Appellate Division noted that it was the prosecutor’s burden to establish the reliability of the novel DNA evidence. While recognizing the need to maintain the confidentiality of trade secrets, the Appellate Division noted that shrouding the source code and related documents in a curtain of secrecy hindered the defendant’s opportunity to meaningfully challenge the reliability of the DNA evidence at a Frye hearing.

The Appellate Court held that if the prosecutor chose to rely on novel genotyping software to render DNA testimony, the defendant was entitled access, under a protective order, to the software’s source code and supporting software development and related documentation to challenge the reliability of the software and science underlying the expert’s testimony at a Frye hearing.

Key Takeaway

This case is significant because it reinforces the fundamental due process rights. State and Federal Constitutions guarantee the right to a fair trial and ensure a meaningful opportunity to provide a complete defense. Technology has recently heavily impacted these rights. This ruling ensures a defendants’ right to a complete defense and examination of novel scientific tools before they are admitted at trial.

About Stephen J. Bodnar

Stephen J. Bodnar is a criminal defense attorney at Rosenberg Perry & Associates, LLC and former Assistant County Prosecutor. Mr. Bodnar oversees all criminal appeals and is well versed in criminal law and procedure. If you or someone you know has been charged with a crime, is being sentenced or seeking an appeal of a criminal matter, please do not hesitate to contact our firm. Mr. Bodnar and the rest of the attorneys at Rosenberg Perry & Associates, LLC can help.