STATE OF NEW JERSEY VS. COREY PICKETT (17-07-0470, HUDSON COUNTY AND STATEWIDE) ( 2021 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-4207-19T4
STATE OF NEW JERSEY,
Plaintiff-Respondent,
APPROVED FOR PUBLICATION
v. February 3, 2021
COREY PICKETT, APPELLATE DIVISION
Defendant-Appellant.
_______________________
Argued January 19, 2021 – Decided February 3, 2021
Before Judges Fasciale, Rothstadt and Susswein.
On appeal from an interlocutory order of the Superior
Court of New Jersey, Law Division, Hudson County,
Indictment No. 17-07-0470.
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 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, 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, admitted pro hac vice,
attorneys; Dana M. Delger, Joseph M. Mazraani,
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, 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)
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of the District of Columbia and Virginia bars,
admitted pro hac vice, attorneys; Dino L. LaVerghetta,
Iain C. Armstrong, Matthew Hopkins, and Mark K.
Silver, 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).
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 Frye1 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.
1
Frye v. United States, 293 F. 1013 (D.C. Cir. 1923).
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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 th e
evidentiary software operates as intended. Without that opportunity, defendant
is relegated to blindly accepting the company's assertions as to its reliability.
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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 (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.
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 Daubert2 hearing,
2
Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (1993). Under Daubert,
trial judges perform a "preliminary assessment of whether the reasoning or
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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
(continued)
methodology underlying the testimony is scientifically valid" and "whether
that reasoning or methodology properly can be applied to the facts in issue."
Id. at 592-93. And under Daubert, general acceptance can still "have a bearing
on the inquiry" but "is not a necessary precondition" to admissibility. Id. at
594, 597.
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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 Advisers 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
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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 (1997) (quoting Frye, 293 F. at 1013-14).
We therefore reverse and remand for further proceedings consistent with
this opinion.
I.
Just after 10:00 p.m. on April 16, 2017, two police officers traveling in
an unmarked vehicle along Ocean Avenue in Jersey City observed two men,
later identified as defendant and co-defendant Jonathan Ferrara, approach a
group gathered near the intersection with Van Nostrand Avenue,
simultaneously raise their handguns, and fire into the crowd. One victim
sustained a bullet wound to the head and was pronounced dead at the scene. A
second victim, a ten-year old girl, suffered a non-fatal wound to the abdomen
when a bullet entered a vehicle in which she was sitting.
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After the shooting, the officers pursued defendant and Ferrara as they
fled down a side street with their guns still in hand. The police arrested them
within a few blocks of the incident. 3 Police found a Colt .45 caliber semi-
automatic handgun while retracing Ferrara's path, and recovered a .38 caliber
Smith and Wesson revolver and ski mask while retracing defendant's path.
A forensic scientist detected the presence of amylase, a constituent of
saliva, on the ski mask, and investigators swabbed the trigger guard, grip, and
front sight of both weapons and the magazine of the Colt .45 for DNA
evidence. The forensic scientist forwarded the mask and swabs to a
laboratory, where analysts determined that the samples from the guns and one
from the mask failed to meet the criteria for traditional DNA analysis, but that
two specimens from the mask each reflected a mixture of DNA profiles, one
with two contributors and the other with three. A comparison with buccal
swab samples taken from defendant and Ferrara showed that defendant was the
major source contributor for the DNA profiles from both the ski mask
specimens conducive to traditional analysis.
3
A Hudson County Grand Jury indicted and charged defendant with first
degree murder, N.J.S.A. 2C:11-3(a)(1) or (2); conspiracy to commit murder,
N.J.S.A. 2C:5-2; two counts of aggravated assault, N.J.S.A. 2C:12-1(b)(1) and
(2); unlawful possession of a weapon, N.J.S.A. 2C:39-5(b)(1); possession of a
weapon for an unlawful purpose, N.J.S.A. 2C:39-4(a)(1); hindering
apprehension, N.J.S.A. 2C:29-3(b)(1); and two counts of resisting arrest,
N.J.S.A. 2C:29-2(a)(2) and (3).
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Because the remaining samples failed to satisfy the criteria for
traditional DNA analysis, the State forwarded the testing data to Cybergenetics
Corp. Laboratory (Cybergenetics), a private firm in Pittsburgh, for analysis
using its proprietary TrueAllele computer software program. Ferrara could not
be identified as a contributor to any of the samples under the statistical
analysis, but defendant was identified as a source of the DNA on the Smith and
Wesson and the ski mask.
There is a substantial difference between testing DNA utilizing
traditional DNA methods and analyzing low levels or complex mixtures of
DNA relying on probabilistic genotyping software.
In traditional DNA analysis, DNA is chemically extracted from a
biological sample and amplified at a predetermined set of segments, or loci,
using polymerase chain reaction (PCR), a technique that replicates the desired
segments to generate millions of copies of each. PCAST Report, at 69. The
lengths of the resulting fragments are then extrapolated, by comparison with
known molecular size standards, from the distance each travels through a
polymer solution during a process called capillary electrophoresis. Ibid. The
analyst then generates a profile from the pair of lengths measured at each
locus—one for each of the genetic variants, or alleles, inherited from each
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parent—and uses the resulting list of alleles for comparison to known samples.
Ibid.
For a single-source sample, identifiable by the presence of at most two
distinct fragment lengths—one reflecting each allele—for each locus, the
profile may be directly compared with that for a known individual to assess
whether the profiles match. Id. at 70. For a simple mixture involving genetic
material from two individuals, on the other hand, analysis proceeds in much
the same manner, but requires first distinguishing the two separate profiles,
either by an imbalance in material rendering one contributor more dominant
than the other or by the presence of a known individual's DNA in the mixture,
such as is often the case in the sexual assault context. Id. at 70, 73. In
conjunction with the simple determination of a match in the list of alleles,
human analysts also typically calculate a "random match probability"—a
statistic measuring the likelihood that another individual in the relevant
population, selected at random, would have the same genotype as the
contributor to the sample. Id. at 72-73. The smaller the probability, the more
solid the match.
But analysis is more difficult with complex mixtures, particularly where
the genetic material involved is small:
Such samples result in a DNA profile that
superimposes multiple individual DNA profiles.
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Interpreting a mixed profile is different for multiple
reasons: each individual may contribute two, one or
zero alleles at each locus; the alleles may overlap with
one another; the peak heights may differ considerably,
owing to differences in the amount and state of
preservation of the DNA from each source; and the
"stutter peaks" that surround alleles (common artifacts
of the DNA amplification process) can obscure alleles
that are present or suggest alleles that are not present.
It is often impossible to tell with certainty which
alleles are present in the mixture or how many
separate individuals contributed to the mixture, let
alone accurately to infer the DNA profile of each
individual.
[Id. at 75-76.]
Compounding that problem, analysis of small samples often entails allele
"drop-in"—the detection of an allele from a contaminant DNA fragment that
was not part of the original sample—or "drop-out"—the failure to detect an
allele from DNA belonging to the sample, usually due to insufficiency of the
quantity for analysis. John M. Butler, Advanced Topics in Forensic DNA
Typing 324-26 (2011). The consequence is that analysis of these samples is
inherently more probabilistic and leaves more room for interpretation than for
the single-source or simple-mixture samples that have been traditionally
subject to DNA testing using the above procedures. PCAST Report, at 76.
The TrueAllele Casework system is one of several software programs
developed with the goal of undertaking analysis of these more complex
samples in as objective a manner as possible. PCAST Report, at 78-79. Such
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programs employ probabilistic genotyping, the "use of biological modeling,
statistical theory, computer algorithms, and probability distributions," to
"assist," rather than "replace," "the DNA analyst in the interpretation of
forensic DNA typing results." Science Working Group on DNA Analysis
Methods (SWGDAM), Guidelines for the Validation of Probabilistic
Genotyping Systems 2 (June 2015) [SWGDAM Guidelines].
Specifically, the programs use mathematical models and simulations,
subject to parameters programmed into the software to account for drop-in or
drop-out effects and other issues, id. at 3, to calculate a likelihood ratio—a
statistic measuring the probability that a given individual was a contributor to
the sample against the probability that another, unrelated individual was the
contributor. Justice Ming W. Chin et al., Forensic DNA Evidence § 5.5
(2020). In contrast to the implication for a random match probability, the
higher the likelihood ratio, the more solid the match. 4
The State requested a Frye hearing, acknowledging that TrueAllele has
not yet been found reliable and admissible in New Jersey. The judge
4
The reason for the inverse relationship is that the random match probability
represents the likelihood that someone other than defendant was the
contributor, while essentially the same probability constitutes the standard of
comparison—the denominator—in the likelihood ratio. In the trivial case of a
single-source sample, the figures should be direct reciprocals of one another.
PCAST Report, at 70 n.178.
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commenced the hearing, at which a co-founder of Cybergenetics, Dr. Mark
Perlin, testified for two days ending in April 2019. The judge qualified Dr.
Perlin as an expert in "the fields of DNA Evidence, Interpretation, and
Likelihood Ratio."
Prior to cross-examination, defendant moved for TrueAllele's software
source code and related documentation. Specifically, the defense sought the
source code and "all software dependencies such as third-party code libraries,
toolboxes, plug-ins, and frameworks," as well as "[s]oftware engineering and
development materials describing the development, deployment, and
maintenance" of the code. Defendant challenged the reliability of the
probabilistic genotyping program, refusing to blindly accept valid ation studies
involving Dr. Perlin, none of which were, as PCAST called for, independent
studies to investigate whether the program's software correctly implemented
the underlying probabilistic genotyping methods.
The parties submitted written declarations by experts detailing, among
other things, the uncertainty involved in DNA mixture interpretation, the need
for verification and validation (V&V) of software engineering, the existence of
software engineering failures, and materials relevant to testing probabilistic
genotyping software. Defense counsel produced a declaration written by
defendant's expert, Nathaniel Adams, a systems engineer retained to address
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the reliability of the science underlying testimony based on TrueAllele. The
State produced a declaration by Dr. Perlin. The parties were apparently
satisfied—as was the judge—that the detailed declarations, Dr. Perlin's
testimony over two days, and the documentation introduced at the Frye
hearing, established a sufficient motion record. We reach that conclusion
because the State did not move to require testimony from Mr. Adams or further
testimony from Dr. Perlin, or otherwise seek a limited remand for that purpose.
In our view, that is not surprising given the detailed record and declarations
submitted by the experts addressing the source code.
Mr. Adams has important and extensive experience performing
probabilistic genotyping analyses, including undertaking review of source
codes. He reviewed "software development materials, including source code,
for [the] probabilistic genotyping systems STRmix[] and FST used in criminal
cases in New York, Illinois, United States, and Australian courts." He
explained:
Since the likelihood calculations are dependent on the
statistical models (algorithms) underlying the
probabilistic software, and software behaviors
affecting the models will necessarily impact the
calculated likelihoods and ultimately the reported
likelihood ratio. Complex systems such as
TrueAllele[] involve a hierarchy of models with
dozens or hundreds of parameters, each affecting the
overall system's behavior.
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Mr. Adams pointed out that forensic DNA analysis "lacks formal standards
specific to the development and validation of probabilistic genotyping
software."5 But software quality unquestionably depends in part on the
"quantity and severity of defects present in the program." He spelled out that
defects cause incorrect and misleading results. One goal of the V&V
processes is to assure "appropriate . . . methods have been used throughout the
software development process and have produced an acceptable product."
V&V involves reviewing software development materials for "correctness,
completeness, consistency, and accuracy." We need not detail every aspect of
his declaration; suffice it to say that Mr. Adams provided the judge with an in -
depth and thorough basis to grant the motion.
Dr. Perlin submitted a seventy-eight-paragraph declaration, which the
State attached to its September 13, 2019 letter opposition brief to the judge.
5
Mr. Adams explained that, although there is no "common standard for the
development of software specific to genotyping systems such as TrueAllele[],
general industry standards and principles of software engineering can be used
to ensure correctness of the systems." As the International Society of Forensic
Genetics (ISFG) stated, international industry standards applicable to software
validation, verification, and test documentation "can be simplified and
extrapolated to forensic genetics." ISFG referenced four levels of system
integrity standards identified by the Institute of Electrical and Electronics
Engineers (IEEE) encompassing "all software programs and systems." Mr.
Adams is unaware of "any formal guidance on probabilistic genotyping system
validation methods." But there are IEEE standards setting forth a checklist for
"stages of verification" especially pertinent to source-code and related
documentation review.
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His declaration covered such topics as the role of TrueAllele in DNA analysis;
TrueAllele's purported widespread acceptance; whether TrueAllele is reliable;
background on the software source code; an explanation for why TrueAllele is
a trade secret; the risks of disclosing the source code; and importantly, the
reasons for why TrueAllele's source code is not needed. His declaration,
therefore, developed the record for the judge's consideration of defendant's
discovery motion.
Dr. Perlin explained that the source code details "step-by-step human-
readable instructions that describe to the computer and programmers how the
program operates." According to Dr. Perlin, who has degrees in chemistry,
mathematics, medicine, and computer science, the source code "contains the
software design, engineering know-how, and algorithmic implementation of
the entire computer program." Although the software program itself is
patented, its source code is not disclosed in patent documents; instead,
Cybergenetics "considers the . . . source code to be a trade secret." 6 Dr. Perlin,
6
TrueAllele's source code qualifies as a trade secret. Cybergenetics has
closely guarded this information and, indeed, defendant emphasizes that fact in
attacking the program's purported inscrutability. See Hammock by Hammock
v. Hoffmann-LaRoche, Inc., 142 N.J. 356, 384 (1995) (defining trade secret as
"compilation of information . . . used in one's business" so as to afford
"advantage over competitors," and recognizing protection to the extent
information kept is secret (quoting Smith v. Bic Corp., 869 F.2d 194, 199 (3d
Cir. 1989))).
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although he was the State's expert, advocated on behalf of his company that
access to the source code would be "immaterial to [a criminal] case,"
"[un]reasonable," and not "in the interests of justice."
According to Dr. Perlin, TrueAllele's software program consists of
approximately 170,000 lines of source code written in MATLAB, a
mathematical programming language designed specifically for visualizing and
programming numerical algorithms. Dr. Perlin volunteered that it could take
hours to decipher only a few dozen lines of the "dense mathematical text"
comprising the code, and estimated that it would take a person, reading at a
rate of ten lines per hour, about eight and a half years to review the code in its
entirety.
Dr. Perlin explained that Cybergenetics operates in a "highly competitive
commercial environment." According to him, at least ten other groups have
developed "similar software." He defended confidentiality by asserting "for -
profit companies [like Cybergenetics] generally do not make their source
codes available to the public." Such secrecy gives Cybergenetics a
commercial "advantage over its competitors" because they do not know—nor
does anyone else—the proprietary code. Once divulged, proprietary trade
secrets, Dr. Perlin explained, are "valuable to competitors" and can be "sold
for profit." He declared that ample material for this case had already been
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provided, including "over thirty validation studies and publications." His
declaration omits reference to his own involvement in those studies, or the
participation in the studies of current or former employees of Cybergenetics,
and he neglected to acknowledge the lessons learned from STRmix and FST,
which were revealed once other courts forced them to make accessible their
source codes for independent review under protective orders.
Dr. Perlin explained that Cybergenetics permits testing the software
online through cloud computing without having to purchase the product, and
makes its methodology, which has long been published, and testing results
available for review and questioning, either at its Pittsburgh office or by
teleconference. Cybergenetics offered defendant an opportunity for
"inspection" of the source code under a severely restrictive non-disclosure
agreement (NDA), which limited inspection to an expert witness retained by
defendant at a time and place determined by the company, under supervision
by a company representative, and video surveillance and recording at all times.
According to the NDA, a stand-alone computer that would not accept storage
devices would be provided for viewing the source code, and, although the
expert could make handwritten notes, the expert would be forbidden from
bringing any photographic devices, including smart phones or tablets, into the
room, and would be bound to turn any notes over to Cybergenetics. The exper t
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would be broadly bound to accept responsibility for any legal and financial
consequences, including a $1,000,000 automatic fine, in the event of a breach
and could not "be a developer of competing software products" or "have any
(direct or indirect) commercial, research or employment interest in such
products."
Mr. Adams emphasized that several of the restrictions Cybergenetics
imposed would undermine an effective review of the source code for purposes
of assessing TrueAllele's reliability. Specifically, the prohibitions on taking
notes except by hand and on accessing the Internet or any removable storage
device would inhibit adequate "documentation of the inspection process and
collection of demonstrative materials," and his inability to compile or exe cute
the source code would be detrimental to any "rigorous . . . inspection." The
ban on email communication, meanwhile, would restrict his consultation with
defense experts in other relevant fields, such as biology, statistics, or software
development, which would be necessary for understanding and evaluating the
source code and related proprietary information. Mr. Adams did not believe
any expert would agree to the automatic assumption of all liability for a
breach.
Defendant's separate proposed protective order provided that the
materials would remain confidential and used solely for purposes of
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preparation of defendant's defense in this matter, that no recipient could
"reveal, use, or disclose any part" of it, except in compliance with the
restrictions in the order, and that no third-party could be granted access
without first agreeing to be bound by the same terms. Defendant's order would
forbid any disclosure at all to a consultant or expert who was "the developer
of" or who "have any direct or indirect commercial or employment interest in
competing software products." The source code would be made available in a
specified accessible format on a stand-alone computer provided by
Cybergenetics for the expert to review and, as necessary, "make inspection
notes, use necessary software, [and] create snippets or screen shots of relevant
lines of code for use in his/her report." All materials, moreover, would be
filed under seal, and all counsel would be bound to take all "reasonable and
appropriate measures to prevent unauthorized disclosure," with any violation
subject to civil and criminal sanction.
In response, Cybergenetics offered to remove some of the conditions for
disclosure in its initial agreement, including the requirement for the expert to
turn over any notes, but left most in place, most notably the broad acceptance
of liability and the prohibition on taking notes or documenting the inspection
in any other manner than by pen and paper. But the parties were unable to
reach an agreement despite "[e]xtensive communications between the parties."
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Indeed, at oral argument in October 2019, the judge and counsel agreed
that an appropriate protective order would accommodate all concerns. To that
end, defense counsel produced a sample protective order utilized in Illinois,
when a court there ordered STRmix to make its source code accessible for
independent review. Although the assistant prosecutor stated this case had a
"long and torturous procedural history," and eventually conceded that the
source code had never been independently examined or tested, especially by
software scientists, he agreed with the judge that "all [the State] need[ed]"
before access was given were "conditions and parameters to protect
[Cybergenetics'] proprietary interests." Oral argument was carried at least
seven times during which counsel unsuccessfully discussed negotiating a
protective order.
On June 23, 2020, the judge entered an order denying defendant's
motion. The judge did not explicitly—for purposes of the discovery motion
and his reliability determinations under Frye—address the importance of
allowing defendant an opportunity to independently evaluate whether
TrueAllele's software correctly implements the probabilistic genotyping
methods, as emphasized by PCAST, rather than relegating defendant to blindly
accepting that the software operated as intended. The judge omitted reference
to whether the software's program contained bugs, glitches, or defects, and if
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so, whether such problems—untested in an adversarial system—could affect
the software's output, which would in turn affect the reliability of TrueAllele.
Pointing to unilateral conditions imposed solely by the State, the judge noted,
however, that
[t]he State is willing to make the source code available
for defense expert review. The State submits the
defense expert is welcome to come to the prosecutor's
office, view the source code on a provided device, and
take notes.
Understandably, the State never contended before the judge that the
judge was missing any substantial pertinent information to make an informed
decision on defendant's motion for the discovery. We believe that is primarily
because the judge had the detailed source-code declarations by the experts, Dr.
Perlin's testimony over two days, validation studies and peer-reviewed articles,
as well as out-of-state case law addressing the reliability of TrueAllele.
Indeed, the State's willingness to permit limited access demonstrates its main
objection pertained not to accessing the source code but rather reasonable
parameters surrounding inspection. Defendant, meanwhile, maintains the
parameters the State has thus far offered are unreasonably burdensome and
restrictive.
In July 2020, we granted leave to appeal from the June 23, 2020 order;
we later granted amici permission to participate. As we pointed out, and as
A-4207-19T4
23
part of defendant's motion for leave to appeal, and thereafter, the State never
requested a limited remand to expand the Frye record with additional
testimony by Dr. Perlin or anyone else. The record therefore demonstrates the
parties did not in any meaningful way dispute the adequacy of the motion
record.
II.
On appeal, defendant argues the following points, which we have
partially re-numbered:
POINT I
THE RELIABILITY OF TRUEALLELE CANNOT
BE DETERMINED WITHOUT COMPLETE
DEFENSE ACCESS TO ITS SOURCE CODE AND
THE TOOLS NECESSARY TO INSPECT THAT
CODE.
1. TrueAllele Is Dramatically Different Than
Traditional DNA Analysis And Its Reliability
Has Never Been Established In New Jersey.
2. A Complete Review Of Source Code Is
Necessary For A Rigorous Assessment Of
TrueAllele's Reliability.
i. Errors in software programs are
ubiquitous and often have devastating
results. Nothing short of full source-code
review can catch and correct these errors.
ii. Errors in the source code of
probabilistic genotyping software have
been found. There is no reason to assume
A-4207-19T4
24
that TrueAllele, whose source code has
never been subject to outside inspection,
is immune from these errors.
iii. Validation studies and peer-reviewed
articles are not a substitute for source-
code review.
3. Defendant Is Entitled To The Source Code
And Related Materials Under Our Discovery
Rules And Jurisprudence. Any Proprietary
Interests Cybergenetics Has Can Be
Accommodated By A Protective Order.
4. This Court Should Not Repeat The Mistake
Of Other Courts By Failing To Subject
TrueAllele To Source-Code Review Before
Ruling On Its Admissibility.
5. Disclosure Is Necessary To Preserve The
Fairness Of Any Trial In Which TrueAllele May
Be Used In The Future.
In his reply letter brief, defendant makes the following additional
contentions, which we have re-numbered:
[POINT II]
THE MATERIALS THE DEFENSE SEEKS ARE
NECESSARY IN ORDER FOR TRUEALLELE'S
RELIABILITY, AND THEREFORE
ADMISSIBILITY, TO BE DETERMINED.
1. The State's Conclusory Assertion That The
Materials At Issue Are A Trade Secret Does Not
Shield These Materials From Disclosure.
A-4207-19T4
25
2. The State Has Failed To Demonstrate That
TrueAllele's Reliability Can Be Assessed
Without Access To These Materials.
III.
We have the benefit of extraordinarily thoughtful amici briefs from a
multitude of organizations, including the New Jersey Attorney General and
other interested entities from around the nation. Before directly analyzing the
issues, we detail their positions. Doing so informs our analysis and holding.
(i)
New Jersey Attorney General (AG)
The AG asserts that defendant requires the State to prove that TrueAllele
is "infallible," which the AG argues is not required under Frye. The AG
argues the State satisfied its burden under Frye by offering three things:
testimony by Dr. Perlin; "validation studies and publications"; and opinions
from other jurisdictions in which those courts have deemed TrueAllele reliable
without independent inspection of the proprietary information. The AG states
that access to the source code is therefore unnecessary to determine whether
TrueAllele is generally accepted in the scientific community. The AG argues
complete general acceptance is not required, and that "any concerns are best
served during cross-examination."
A-4207-19T4
26
The AG suggests that if this court deems full access is possibly
necessary, then we should remand and allow testimony from Dr. Perlin and
Mr. Adams about whether access to proprietary information is appropriate.
The AG cites State v. Ghigliotty, 463 N.J. Super. 355, 384-85 (App. Div.
2020), for the proposition that defendant must "provide the [judge] with a
rational basis" before allowing reasonable access. According to the AG,
defendant failed to do so here. 7
At oral argument, the AG conceded the State will not be prejudiced by
disclosure of the discovery. The AG argues the State is willing to make the
trade secrets available to defendant, but contends defendant is unreasonably
unsatisfied with the State's terms of inspection. The AG contends that defense
counsel wanted "unsupervised and unrestricted access to proprietary
information." In affording access to the information, the AG asserts that the
State "removed many of the typical restrictions required." The AG states "[a]
protective order that offers no protections is not adequate in a competitive
market." As the AG points out, the parties unsuccessfully attempted
negotiating terms of such an order.
7
The AG's written submission omitted any reference to the significant
reliability problems uncovered once STRmix and FST produced their
proprietary information by court order for independent review under protective
orders.
A-4207-19T4
27
(ii)
The Innocence Project
The Innocence Project maintains that analyzing the source code is
critical to determining the reliability of TrueAllele because it would reveal,
among other things, errors in coding or input. The Innocence Project
underscores these indisputable facts: people write source codes; people make
mistakes.
The Innocence Project states that genotyping software is prone to error,
as exemplified by the problems associated with STRmix and FST. It is not
enough—as the State argues—to allow inspection of articles discussing how
TrueAllele is intended to work; without the source code it is impossible to
detect errors in implementation. Without access to the source code one cannot
identify errors or biases, which the Innocence Project explains are relevant to
reliability at the Frye hearing. Although algorithms and models are publicly
available, TrueAllele's source code, which the Innocence Project contends is
prone to error even when the corresponding algorithms and models may be
correct, is known only by individuals at Cybergenetics. At oral argument, the
Innocence Project emphasized that, while validation studies are important and
programs may find their way into court without them, independent review and
the judge's Frye gatekeeping should not be perfunctory.
A-4207-19T4
28
(iii)
Upturn, Inc. (Upturn)
Upturn, an organization seeking to advance equity and justice in the
design, governance, and use of technology, points out that TrueAllele's source
code has never been independently reviewed, and that such a review is a basic
and necessary step in ensuring reliability. Importantly, the version of
TrueAllele software utilized in defendant's case postdates every one of the
validation studies cited by Cybergenetics and the State. It explains this is
critical because subsequent source code variations may introduce new errors
not previously present. Undertaking an independent review establishes
whether the software is properly implementing the program's design
specifications and that the code itself is devoid of bugs, glitches, and defects
that could affect the software's output. And equally important is that
TrueAllele's source code has never been scrutinized by any party outside of
Cybergenetics; therefore, the validation studies produced by the State to date
are limited.
Upturn points out that looking at what happened with FST in New
York—when a federal judge required OCME to make available the source
code for the program, revealing errors—demonstrates the significance of what
is at stake. Mr. Adams examined FST's code and discovered two critical
A-4207-19T4
29
problems: the code did not implement FST's methods and models utilized in
FST's validation studies, and there were coding errors. The New Jersey
Supreme Court did the same thing in Chun, by requiring Draeger to produce its
source code. Upturn encourages this court to take the same action to assess
TrueAllele's reliability at the Frye hearing.
Upturn maintains that trade secrets should not be prioritized over
considerations of justice, especially because production of a for-profit
company's trade secret can be reviewed under an appropriate protective order.
Upturn relies on N.J.S.A. 2A:84A-26 (rejecting application of trade secret
privilege where it "tend[s] to conceal fraud or otherwise work[s] injustice"),
and it contends that interpreting evidentiary privileges narrowly, Pierce Cnty.
v. Guillen, 537 U.S. 129, 144 (2003), provides further support for resisting
application of the privilege whenever that would impede justice.
(iv)
The Association of Criminal Defense Lawyers of New Jersey (ACDL-NJ)
ACDL-NJ asserts that probabilistic genotyping has not yet been used or
tested in New Jersey. Like other amici, ACDL-NJ argues that, given that
TrueAllele's leading competitor, STRmix, has produced its source code and
conceded its software had errors, rigorous scrutiny of TrueAllele's source code
becomes even more compelling. If anything, STRmix's source-code problems
A-4207-19T4
30
reaffirm the basic principle in computer engineering that software is prone to
human error.
ACDL-NJ argues the source code is discoverable under New Jersey law.
Of course, the United States Constitution and the New Jersey Constitution
guarantee a meaningful opportunity to present a complete defense. But
ACDL-NJ asserts that New Jersey's robust discovery practices are broader than
those of other jurisdictions. For example, Rule 3:13-3(b) provides a non-
exhaustive list of discoverable materials. And in Chun, the Court allowed the
defendants to analyze the source code of the software that ran the Alcotest,
which disclosed two errors that affected the way Alcotest results had been used
in prosecutions. 194 N.J. at 94.
Finally, ACDL-NJ argues that requiring a defense attorney to sign any
order that preconditions a defense expert's review of the source code in
practical ways—such as in this case—is prohibitive. Doing so impedes
counsel's ability to provide an effective defense, which would be free from any
conflict of interest. Here, there are enormous problems associated with the
State's proposed protective order: defense counsel could only make
handwritten notes while looking at hundreds of thousands of lines of code;
counsel could not use electronic devices; the only computer available to
counsel would be one provided by Cybergenetics; counsel would be under
A-4207-19T4
31
constant supervision; and counsel would be exposed to monetary damages,
including fees and costs, as spelled out under the State's terms. Rather,
ACDL-NJ contends that the judge should issue an appropriate protective order
that protects Cybergenetics' proprietary interests, while simultaneously
protecting defendant's liberty interests. ACDL-NJ notes that protective orders
have safeguarded trade secrets in high-risk civil litigation for years and can
therefore do so here. 8
(v)
The Legal Aid Society (LAS)
LAS is the primary public defender in New York City. LAS has first -
hand experience litigating the admissibility of a proprietary probabilistic
genotyping program—FST—including successfully obtaining access to FST's
source code, which led to an alarming discovery: significant flaws existed in
8
ACDL-NJ also argues that the source code is hearsay and considered a
testimonial statement; without it, defendant's confrontation rights are violated.
ACDL-NJ relies on a New York appellate opinion, People v. Wakefield, 107
N.Y.S.3d 487, 496-97 (App. Div. 2019), which held that TrueAllele was
testimonial, but that Dr. Perlin was the declarant and his availability for cross -
examination cured any confrontation right issues. We need not address issues
that may arise at trial; at this point the question is whether defendant is entitled
to the proprietary information for the sole purpose of challenging at a Frye
hearing the science underlying novel DNA analysis software and expert
testimony. Having concluded that defendant is entitled to the review—under a
protective order—questions of defendant's confrontation rights at trial need not
be addressed at this point.
A-4207-19T4
32
the software program. Without access to the source code, the defects and
glitches in the software would not have been uncovered. The bugs in the
program were substantial enough for OCME to cease using FST, which up to
that point had been used in thousands of criminal prosecutions over several
years.
Like the other amici, LAS emphasizes the extraordinary complexity of
probabilistic genotyping. LAS urges us to carefully consider the inherent
limitations of the expert testimony, scientific and legal writings, and judicial
opinions submitted by the State: none required an examination of TrueAllele's
source code. Consequently, LAS implores us to consider the State's
submissions with healthy skepticism.
LAS explains that probabilistic genotyping software is intended to
address interpretational challenges of testing low levels or complex mixtures
of DNA. For example, stochastic effects and artifacts complicate determining
genotypes, or DNA profiles: alleles not belonging to true donors appear, they
can be distorted, and artifacts appear as real alleles. LAS points out PCAST
emphasized that probabilistic genotyping is in its infancy and must be subject
to "careful scrutiny." PCAST Report, at 79. Specifically, PCAST found in
2016—and pertinent to questions of Frye reliability—that probabilistic
genotyping programs should be evaluated to determine "whether the methods
A-4207-19T4
33
are scientifically valid" and importantly, "whether the software correctly
implements the methods." Ibid. And critical to the determination, according
to PCAST, is testing by independent entities "not associated with the software
developers." Ibid. LAS states that the only way to determine whether a
program operates as intended is to evaluate how the program performs its
calculations, which requires access to the source code.
Fortunately, due to its own efforts, LAS points to the case study of FST,
troubling that it is, which demonstrates the importance of an independent and
full source-code review when a judge makes a threshold reliability
determination of whether novel forensic software has achieved general
acceptance in the relevant scientific community. The creators of FST fought
tooth and nail not to disclose its source code. But after a federal judge denied
OCME's motion to quash a subpoena for the source code, a stark discovery
was made about the program: the FST did not work as promised. FST was
utilized in thousands of criminal prosecutions before the discovery was made.
OCME announced—after the production of the source code—that it would
phase out using FST in criminal prosecutions.
According to LAS, the State's assertion that the source code was not
needed in any of TrueAllele's "numerous [prior] nationwide admissibility
rulings," is at best misguided. LAS implores us to carefully examine the
A-4207-19T4
34
premise of that body. LAS contends that what matters is not the number of
cited opinions, but rather, the power of the court's reasoning. LAS reminds us,
as the New York Court of Appeals recently stated in People v. Williams, 147
N.E.3d 1131, 1140-42 (N.Y. 2020), that it was a mistake to rely on the
repetition of case law to establish reliability; rather, for purposes of a Frye
hearing, lower courts were bound to ensure that FST was "supported by those
[in the relevant scientific community] with no professional interest in its
acceptance." LAS urges us to heed the lessons of FST and permit full
independent access to the source code under a protective order.
(vi)
Drs. Mats Heimdahl and Jeanna Matthews
Drs. Heimdahl and Matthews are experts in engineering, testing, and
validating computer systems, including forensic evidentiary software. They,
together with eight other experts in this specific field that they have identified,
argue that reliability of the TrueAllele software cannot be evaluated without
full access to "executable source code and related documentation," something
that no one to date has seen. They contend that doing so is not only prudent,
but essential to determining whether TrueAllele operates as Cybergenetics
claims, which is fundamental to any fair, legitimate, and impartial assessment
of reliability.
A-4207-19T4
35
Drs. Heimdahl and Matthews remind us that software faults are
ubiquitous. They argue that even simple software programs are prone to
failure, and that an error in any one of the three domains of software
engineering—problem identification, algorithm development, and software
implementation—undermines the trustworthiness of the science underlying the
relevant expert testimony, because the system is consequentially compromised.
After providing examples illustrating various errors in more simpli stic
software, they demonstrated that a greater risk of flaws in more complex
programs are likely.
For example, a source code review revealed at least thirteen STRmix
coding faults. Drs. Heimdahl and Matthews argue, in one important example,
a miscode impacted sixty criminal cases, requiring new likelihood ratios to be
issued in twenty-four of them. These errors were not discovered until the
source code was independently examined.
In FST, alarming discoveries were also made. But the findings did not
come to light until a federal judge ordered disclosure of FST's source code.
Once that occurred, it was uncovered that a "secret function . . . was present in
the software, tending to overestimate the likelihood of guilt." And the
functioning of the software did not use the "methodology publicly described in
A-4207-19T4
36
sworn testimony and peer-reviewed publications." These discoveries led to the
overturning of a high-profile conviction.
Drs. Heimdahl and Matthews assert that thousands of faults were
discovered in the source code of breathalyzer systems. They point out that
judges in Massachusetts and New Jersey threw out more than 30,000 breath
tests in a twelve-month period. Drs. Heimdahl and Matthews urge us not to
ignore these facts.
Drs. Heimdahl and Matthews argue that the testing of TrueAllele is
incomplete. Thirty-five of the thirty-six validation studies produced by the
State, which were written by or included involvement from current or former
employees of Cybergenetics or law enforcement agencies, did not consider the
source code, and they were otherwise incomplete because the number of
samples tested was relatively small. They note that TrueAllele's software is
non-continuous, meaning that correct results for the samples used in the
validation studies do not preclude the possibility of erroneous results for others
that do not match those samples. Thus, for a reliability determination,
independent and full access to the software is required. Supporting software
development documentation must be produced, including that pertaining to
testing, design, bug reporting, change logs, and program requirements, which
will provide a road map to understanding the source code.
A-4207-19T4
37
(vii)
American Civil Liberties Union of New Jersey (ACLU-NJ)
The ACLU-NJ argues that independent review is essential. Questioning
Dr. Perlin, reviewing validation studies and peer-reviewed articles in which he
or his current or former employees were involved, or relying on out-of-state
judicial opinions citing his testimony and those studies misses the importance
of objective analysis of the science underlying his forensic testimony. Most
importantly, it cannot substitute for independent analysis of the code itself,
which would demonstrate whether the software operates as intended. 9
9
We need not address the ACLU-NJ's additional contention—raised for the
first time—that use of likelihood ratio evidence so inherently undermines a
criminal defendant's right to a fair trial, by eroding the prosecution's burden of
proof and biasing the jury, that it should be excluded at trial regardless of its
scientific reliability. Defendant did not raise these points, no related record
has been assembled, and the judge made no pertinent factual findings or legal
conclusions. It is well established that generally, an amicus curiae "must
accept the case before the court as presented by the parties and cannot raise
issues not raised by the parties." State v. Lazo, 209 N.J. 9, 25 (2012) (quoting
Bethlehem Twp. Bd. of Educ. v. Bethlehem Twp. Educ. Ass'n, 91 N.J. 38, 48-
49 (1982)). The parties are not, however, precluded from addressing these
contentions at the right time.
We, however, make the following brief remarks. Criminal defendants,
of course, enjoy a presumption of innocence, and may be convicted only on
proof beyond a reasonable doubt, In re Winship, 397 U.S. 358, 363-64 (1970),
but those principles do not appear to be inherently implicated by this evidence.
The probability of defendant's contribution to a DNA sample is a component
of the likelihood ratio, but the denominator—the standard of comparison—is
the probability that another, unrelated individual from the relevant population
A-4207-19T4
38
IV.
As the New Jersey Supreme Court recently stated, "the Judiciary must
ensure that proceedings are fair to both the accused and the victim. Trial
judges partly fulfill that responsibility by serving as a gatekeeper. In that role,
they must assess whether expert testimony is sufficiently reliable before it can
be presented to a jury." State v. J.L.G., 234 N.J. 265, 307-08 (2018). When
the evidence is labeled as scientific and expert, there is substantial danger that
juries will accord excessive weight to testimony that might otherwise be
unreliable. Ghigliotty, 463 N.J. Super. at 373. The law accounts for this
eventuality.
(continued)
contributed to the sample instead—a presumption of innocence. Indeed,
random match probability widely accepted for use as to traditional DNA
analysis essentially embodies the same probabilities, just subject to the reverse
comparison. PCAST Report, at 70 n.178.
The authority on which the ACLU-NJ relies is not to the contrary. The
courts in State v. Hartman, 426 N.W.2d 320, 326 (Wis. 1988), and State v.
Skipper, 637 A.2d 1101, 1103-08 (Conn. 1994), both rejected admission of a
probability-of-paternity figure on the ground that its calculation presumed the
defendant had engaged in intercourse with the victim he was alleged to have
sexually assaulted. But at issue in both cases was not a composite statistic,
such as the likelihood ratio, but a simple probability estimate directly
calculated using the very presumption it was meant to prove. Here, in contrast,
the probability that defendant was a contributor to the sample was calculated
based on simulations from the sample data, not on any presumption of his
contribution. The likelihood ratio calculated from that probability likewise
does not presume his guilt but effectively compares the probability of his guilt
against a presumption of innocence.
A-4207-19T4
39
To fulfill their gatekeeping responsibility, judges begin by applying
N.J.R.E. 702, which states that, "[i]f scientific . . . knowledge will assist the
trier of fact to understand the evidence or to determine a fact in issue, a
witness qualified as an expert by knowledge, skill, experience, training, or
education may testify thereto in the form of an opinion or otherwise." To
satisfy this requirement,
the proponent of expert evidence must establish three
things: (1) the subject matter of the testimony must be
"beyond the ken of the average juror"; (2) the field of
inquiry "must be at a state of the art such that an
expert's testimony could be sufficiently reliable"; and
(3) "the witness must have sufficient expertise to offer
the" testimony.
[J.L.G., 234 N.J. at 280 (quoting State v. Kelly, 97
N.J. 178, 208 (1984)).]
In general, these prongs "are construed liberally in light of [N.J.R.E.] 702's tilt
in favor of the admissibility of expert testimony." State v. Jenewicz, 193 N.J.
440, 454 (2008). The first and third prongs are not at issue here; rather, the
second prong is. The parties and amici have focused—as do we—on whether
defendant is entitled to independently review the source code and related
documents pertaining to the reliability prong before cross-examination of Dr.
Perlin and before the judge completes his important Frye reliability
gatekeeping function.
A-4207-19T4
40
In criminal cases, the Supreme Court of New Jersey has continued to
apply the Frye standard to assess scientific reliability lying beneath the expert
testimony.10 J.L.G., 234 N.J. at 280. The Frye test requires trial judges to
determine whether the particular science underlying the proposed expert
testimony has "gained general acceptance in the particular field in which it
belongs." Frye, 293 F. at 1014; accord J.L.G., 234 N.J. at 280; Harvey, 151
N.J. at 169; see also State v. Torres, 183 N.J. 554, 568 (2005). "Although we
look for wide support within the relevant scientific community, complete
agreement is not required for evidence to be admitted." J.L.G., 234 N.J. at
281. Importantly—like here—there might be more than one scientific
community to consider. Thus, to assess the reliability prong of N.J.R.E. 702,
and relevant to the issues on appeal, the judge should consider—as to general
acceptance in the scientific community—whether Cybergenetics' TrueAllele
probabilistic genotyping computer program is scientifically valid and
importantly, whether the source code itself correctly implements the methods.
But to do that raises the question of whether defendant is first entitled to
discovery of the proprietary information he seeks, which brings us to our legal
analysis.
10
The parties and amici have not asked us to depart from Frye and adopt the
Daubert test utilized by federal courts.
A-4207-19T4
41
V.
The right to a fair trial is fundamental and guaranteed pursuant to the
Fifth and Sixth Amendments of the United States Constitution, as well as the
New Jersey Constitution. U.S. Const. amend. V, VI; N.J. Const. art. I, ¶ 10.
Our Constitutions also ensure criminal defendants "a meaningful opportunity
to present a complete defense." State v. Garron, 177 N.J. 147, 168 (2003)
(quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). These fundamental
legal rights are the hallmark of our judicial process, a process which
technology has recently heavily impacted. Forensic evidentiary computer
software itself generates expert evidence, and the New Jersey Rules of
Evidence enable the introduction and, consequently, cross-examination of
expert witnesses. N.J.R.E. 702. Without access to the source code—the raw
materials of the software programming—a defendant's right to present a
complete defense, by meaningful cross-examination at the appropriate
juncture, may be substantially compromised. Relevant to this case, "[a]
criminal trial where the defendant does not have 'access to the raw materials
integral to the building of an effective defense' is fundamentally unfair." State
in the Interest of A.B., 219 N.J. 542, 556 (2014) (quoting Ake v. Oklahoma,
470 U.S. 68, 77 (1985)). We must keep these principles in mind and front and
A-4207-19T4
42
center during our review of the judge's order denying full access to the
discovery sought.
In criminal cases, we ordinarily apply an abuse of discretion standard on
discovery motions, State v. Stein, 225 N.J. 582, 593 (2016), and on evidentiary
determinations, State v. Prall, 231 N.J. 567, 580 (2018), but here defendant
sought access—at a Frye hearing—to proprietary information solely to
challenge the reliability of the science underlying novel DNA analysis
evidentiary software and expert testimony. An appropriate review therefore
requires that we also independently scrutinize the record, including the
comprehensive and amplified declarations of the experts, the scientific
validation studies and peer-reviewed publications, and judicial opinions. See
In re Commitment of R.S., 339 N.J. Super. 507, 531 (App. Div. 2001) (noting
that when matters involve "novel scientific evidence in a criminal proceeding,
'an appellate court should scrutinize the record and independently review the
relevant authorities, including judicial opinions and scientific literature'"
(quoting Harvey, 151 N.J. at 167)).
Information pertinent to the Frye inquiry is subject to the same "broad
pretrial discovery" otherwise afforded a criminal defendant under Rule 3:13-
3(b). State v. Scoles, 214 N.J. 236, 252 (2013). Our state's "'open-file
approach to pretrial discovery in criminal matters' is intended '[t]o advance the
A-4207-19T4
43
goal of providing fair and just criminal trials.'" State v. Hernandez, 225 N.J.
451, 461-62 (2016) (alteration in original) (quoting Scoles, 214 N.J. at 252);
see State v. Cook, 43 N.J. 560, 564 (1965) (noting that "discovery has long . . .
been found to be a sound tool for truth"). Because of the meaningful role that
the disclosure of evidence to a defendant has in promoting the search for
truth—and reliability at a Frye hearing—pretrial discovery in criminal trials
has long received favorable treatment in this state. See State in the Interest of
W.C., 85 N.J. 218, 221 (1981) (noting sharing of pretrial information
"encourage[s] the presentation of all relevant material to the jury as an aid in
the establishment of truth through the judicial process"). Although that
discovery is not so broad, for example, as to indulge an "unfocused, haphazard
search for evidence," Hernandez, 225 N.J at 463 (quoting State v. D.R.H., 127
N.J. 249, 256 (1992)), judges are authorized to order discovery even "beyond
that mandated by our court rules when doing so will further the truth-seeking
function or ensure the fairness of a trial," ibid. (quoting A.B., 219 N.J. at 560).
As to the evidence at issue here, a party seeking to shield information
from discovery on intellectual property grounds generally bears the burden of
showing good cause to demonstrate "that the information sought is a trade
secret or is otherwise confidential or proprietary." Cap. Health Sys., Inc. v.
Horizon Healthcare Servs., Inc., 230 N.J. 73, 80 (2017); see also R. 4:10-3(g)
A-4207-19T4
44
(providing that a protective order may be sought to ensure "[t]hat a trade secret
or other confidential research, development, or commercial information not be
disclosed or be disclosed only in a designated way"); N.J.S.A. 2A:84A-26
(providing that "[t]he owner of a trade secret has a privilege . . . to refuse to
disclose the secret and to prevent other persons from disclosing it if the judge
finds that the allowance of the privilege will not tend to conceal fraud or
otherwise work injustice"). Yet, even once that showing of privilege is made,
a criminal defendant should nonetheless be entitled to discovery of the
information sought to the extent necessary to ensure a fair trial. Hernandez,
225 N.J. at 463. But the burden must shift to defendant to demonstrate a
sufficient need for the evidence. See Ghigliotty, 463 N.J. Super. at 384-85
(requiring "definitive" demonstration of need for disclosure of algorithm); cf.
Tractenberg v. Twp. of W. Orange, 416 N.J. Super. 354, 367 (App. Div. 2010)
(discussing burden shift in the context of deliberative process privilege).
As we stated earlier, the Court ordered production of the source code in
Chun. Although we ordinarily consider published decisions from other
jurisdictions as persuasive, they are not binding on us. See Lewis v. Harris,
188 N.J. 415, 436 (2006) (noting that our courts are "not bound by . . . the
precedents of other states, although they may provide guideposts and
persuasive authority"). The rationale undergirding Chun is binding. More
A-4207-19T4
45
recently, in Ghigliotty, 463 N.J. Super. at 360, 384-85, we too addressed the
disclosure of proprietary information, algorithms underlying the software for
BULLETTRAX, a novel device used for three-dimensional ballistics imaging,
in contemplation of a Frye hearing. We vacated a motion judge's order
requiring the State to produce the algorithms, but only because we viewed the
order as prematurely issued. Id. at 384. We explicitly contemplated—as did
the motion judge—that "this information might be needed by defendant's
experts to evaluate the reliability of the new technology," but noted that—
unlike here—there was nothing in the record to support that order. Ibid. We
explained that a "defendant is required to make a more definitive showing of
his need for th[e] material to provide the [judge] with a rational basis to order
the State to attempt to produce" the proprietary algorithms. Id. at 384-85.
Before going any further, we stress one important point. Evaluating the
issues on appeal requires a working knowledge of computer software. Without
such a foundation, one can miss subtle consequences germane to this Frye
hearing. Allowing independent access to the requested information, for the
sole purpose of addressing whether the technology underlying the expert
testimony is reliable—specifically, whether the source code for that
technology is properly implementing the program's design specifications—is
obvious. An accused individual's liberty is at stake; DNA evidence is
A-4207-19T4
46
powerful and compelling. 11 Practically speaking, if, as Dr. Perlin maintains,
the source code he wrote is free of harmful defects, and therefore will not
impact the reliability of TrueAllele, then it is to everyone's advantage to learn
that at the Frye hearing. If it should turn out there are source code errors that
might affect TrueAllele's reliability, the time to discover that information is
now, as part of the judge's gatekeeping role. Reliability must be resolved at
the Frye hearing rather than in post-conviction relief proceedings.
We are also mindful of the important need to maintain the
confidentiality of trade secrets in—as Dr. Perlin emphasized in his own
declaration—a "highly competitive commercial environment." All agree on
that. But shrouding the source code and related documents in a curtain of
secrecy substantially hinders defendant's opportunity to meaningfully
challenge reliability at a Frye hearing. The confluence of these competing and
powerful interests compels our holding.
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
11
It goes without saying that denying the State access to the source code is
equally consequential in that, should a defendant attempt utilization of
TrueAllele for exoneration purposes—as the State points out has been done in
other jurisdictions—then the rights of the public, including the victims, would
be similarly impacted. Indeed, in this case, TrueAllele did not find co-
defendant's DNA match.
A-4207-19T4
47
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. Applying this
framework to the facts, we conclude defendant satisfied his burden.
(i)
Rational basis for accessibility and expert testimony
In addressing this prong—whether there exists a rational basis for
accessibility of the proprietary information—we must address the "three ways
to establish general acceptance under Frye: expert testimony, authoritative
scientific and legal writings, and judicial opinions." J.L.G., 234 N.J. at 281.
A-4207-19T4
48
We do this by independently scrutinizing these categories with the benefit of
lessons learned by the consequential software errors associated with STRmix
and FST. Doing so convinces us that there is a rational basis for full access to
TrueAllele's source code and related documentation for purposes of a Frye
reliability analysis.
The troubling FST case study demonstrates a rational basis for
independent source-code review of probabilistic DNA programs like
TrueAllele. After being subjected to an adversarial audit when ProPublica
obtained an order for the release of FST's source code, it was revealed that
FST had a problem with a certain calculation that was only learned through the
adversarial examination of the source code. Steven M. Bellovin et al., Seeking
the Source: Criminal Defendants' Constitutional Right to Source Code, 17
Ohio State Tech. L.J. 1, 38 (2021). The audit discovered that certain "loci
were removed from the likelihood ratio calculation" without "notice, either
intended or actual, provided to the user of FST," nor any "indication that this
behavior [was] intended during [the] examination of FST-related publications
and the FST [v]alidation materials." 12 Ibid.; see also Stephanie J. Lacambra et
12
It is also suggested that this calculation existed in the source code after a
validation study had been conducted. Bellovin et al., 17 Ohio State Tech. L.J.
at 39.
A-4207-19T4
49
al., Opening the Black Box: Defendants' Rights to Confront Forensic Software,
Champion 28, 30 (May 2018) (providing a snippet of the source code and
explaining that "if the sum of frequencies is greater than 0.97, a row in the
raceTable is removed").13 As a result, the software was overestimating the
likelihood of guilt. Beyond undocumented calculations, it was discovered that
FST exhibited code smells, 14 which suggested that "the program is below
normal professional standards and may have other, not yet detected problems"
which are "extremely difficult to detect . . . without access to [the] source
code." Bellovin et al., 17 Ohio State Tech. L.J. at 39. At oral argument, the
Innocence Project pointed out that, like TrueAllele, FST was subject to
multiple validation studies but errors were still found in the source code,
proving that validation of this type of evidentiary software is not determinative
when evaluating computer science reliability.
Likewise, code errors and miscodes were discovered in TrueAllele's
competitor STRmix after it had been developed, validated, and used in
13
Available at https://www.eff.org/files/2018/07/30/champion_article_-
_lacambra_forensic_software_may_2018_07102018.pdf.
14
"A code smell is a surface indication that usually corresponds to a deeper
problem in the system. In this sense, a smell is not a defect in itself but is a
deviation from good coding practices, which can indicate underlying software
defects." Ibid. (internal quotation marks omitted).
A-4207-19T4
50
criminal prosecutions, further showing that errors in source code are not
obvious or always timely found. When the source code was reviewed by
independent forensic analysts, it was uncovered that the program produced
false results in sixty cases. 15 Mr. Adams also reviewed STRmix's code in 2015
and "was able to identify potential issues in STR[m]ix's source code that
negatively affected the functioning of the software and could not have been
learned from any other source."
Defendant points out that any program's output could potentially be
skewed not only by the inadvertent errors routinely found in lengthy code but
by the numerous subtle choices made by programming developers regarding
how to interpret input data. Defendant asserts, in part by reference to Mr.
Adams' declaration, that many of those biases and errors may be conducive to
detection only by a full examination and testing of the code and points to the
consequential software errors of STRmix and the FST. Indeed, exacerbating
15
David Murray, Queensland Authorities Confirm 'Miscode' Affects DNA
Evidence in Criminal Cases, Courier-Mail (Mar. 20, 2015),
http://www.couriermail.com.au/news/queensland/queensland-authorities-
confirm-miscode-affects-dna-evidence-in-criminal-cases/news-
story/833c580d3f1c59039efd1a2ef55af92b (noting that while true that "[t]he
DNA likelihood ratios in both the new and original statements appear[ed] to be
the same," this still raised serious concerns as to the reliability of such
software). As the developer of STRmix stated, "the error had been present
since [the version with the erroneous source code’s] inception in 2012," nearl y
three years prior. Ibid.
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51
the danger of inherent bias or error specifically with respect to probabilistic
genotyping software is that the likelihood ratio is not conducive to independent
calculation or other precise verification, but highly sensitive to modeling
assumptions embodied in the code. Defendant surmises that errors of similar
magnitude and consequence to those in STRmix and FST may infect
TrueAllele's code, noting that the program is likely to return vastly different
likelihood ratios for the same physical sample in successive tests without
explanation, and that the code has been edited numerous times without any
explanation as to whether errors were remedied or any scrutiny as to whether
others were inadvertently introduced. Defendant disputes that the validation
studies and judicial reliability determinations of other jurisdictions, both of
which the judge here found significant, were viable substitutes for source -code
review in this case.
As discussed above, many of the amici amplify defendant's argument
that full access to the source code is essential to evaluation. The Innocence
Project, LAS, and Upturn all concur on that point, with LAS highlighting the
discontinued FST program as a cautionary tale, and Upturn warning that a
failure to require production would encourage secrecy and erode criminal
defendants' constitutional rights. Drs. Heimdahl and Matthews, meanwhile,
confirm and reiterate that errors are ubiquitous in software code and strongly
A-4207-19T4
52
believe that TrueAllele's code likely contains them. Moreover, they discount
the validation studies on which the State relies, asserting that none entailed
genuinely independent review, and that none involved computer science
testing of whether the software operated as intended.
We acknowledge the State, on the other hand, disputes the notion that
source-code review is essential to validation, noting that the SWGDAM
guidelines require no such review, only testing, such as the sort that uncovered
errors in the STRmix software. To be sure, the State is correct that the
mechanism for evaluation contemplated in the SWGDAM guidelines is testing
rather than source-code review, SWGDAM Guidelines, at 4-11, and that errors
found in the STRmix program had been detected first through testing rather
than visual examination of the code, Duncan A. Taylor et al., Commentary, A
"Source" of Error: Computer Code, Criminal Defendants, and the
Constitution, 8 Frontiers in Genetics art. 33, at 1 (2017). 16 But production and
review of the code for the since-discontinued FST program proved crucial to
identification of significant errors, albeit not before compromised test results
had already been used in many prosecutions. Lauren Kirchner, Doubts and
DNA Evidence, N.Y. Times, Sept. 5, 2017, at A1. We cannot ignore these
16
Available at https://www.frontiersin.org/articles/10.3389/fgene.2017.00033/
full.
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53
facts when evaluating whether there exists a rational basis for access to the
proprietary information here.
The parties have cited expert testimony, authoritative scientific and legal
writings, and judicial opinions that were generated before and after the
STRmix and FST's software errors became public. This information bolsters
our conclusion that there is a rational basis for the discovery. The State, of
course, urged the judge to rely on that body of information to conclude there
was no such basis. The testimony predominantly cited was that of Dr. Perlin,
the scientific writings were mainly from Dr. Perlin (together with his then
current or former employees), 17 and the judicial opinions referred to that
testimony and those scientific writings. But none of this information explicitly
deals with whether TrueAllele's source code itself correctly implements the
intended methods, as PCAST emphasized. PCAST Report, at 79.
As to expert testimony, Mr. Adams submitted a twenty-four-page
declaration in which he asserted a need for production of the source code and
related documentation. In his declaration, he addressed: his qualifications; an
overview of his engagement, including whether TrueAllele "has been
demonstrated to be in accordance with software engineering standards and
principles"; the uncertainty in DNA mixture interpretation; a background on
17
Many of the studies explicitly acknowledge Dr. Perlin's conflict of interest.
A-4207-19T4
54
software engineering; details as to V&V, including definitions in the field of
software engineering, system integrity, methodologies, code reviews, software
testing, documentation, independence, and re-validation and performance
checks; software engineering failures; materials relevant for review;
requirement specifications, including design descriptions, source code, build
instructions and dependencies, executable versions, tests, issue/bug tracking;
user manuals, V&V, qualification and user testing, and miscellaneous
processes; comment on Cybergenetics' proposed terms of inspection and
nondisclosure agreement; and preferred terms for inspection. He also
produced a detailed appendix to his declaration including documentation as to
the software development process, the IEEE "risk-based, integrity-level
scheme."
Unlike in Ghigliotty, where there was "nothing concrete in the record" to
support access to the algorithms the defendant sought for the BULLETTRAX
algorithms at issue there, the opposite is true here. 463 N.J. Super. at 384. In
Ghigliotty, we concluded the defendant was "required to make a more
definitive showing of his need for th[e] material." Id. 384-85. Here, defendant
did that with the proffered expert testimony supporting the claim for
disclosure.
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55
As to the validation studies and peer-reviewed articles issued during this
timeframe, we have scrutinized them and make the following observations
about their application. Since 2009, thirty-six validation studies have been
conducted by Cybergenetics, law enforcement crime labs, or both, intending to
establish the reliability of TrueAllele. These studies have utilized TrueAllele
on both laboratory-generated and casework DNA samples and have tested
TrueAllele to determine how it handles mixtures of varying DNA
compositions and weights.
Seven of the thirty-six studies have been published in peer-reviewed
journals, the first of which was published in 2009. The peer-review process
entails a review for accuracy and quality of a scientific paper, in which a
scientist describes his or her research and conclusions, and it is either accepted
or rejected by two anonymous members of the relevant scientific community.
A "laboratory-generated" validation study uses data that has been synthesized
in a DNA laboratory and is of a known genotype composition. Four published
papers are of this type. 18 A "casework" validation study uses DNA data
18
See Mark W. Perlin & Alexander Sinelnikov, An Information Gap in DNA
Evidence Interpretation, 4 PLoS ONE e8327 (2009) [Information Gap]; Jack
Ballantyne, Erin K. Hanson, Mark W. Perlin, DNA Mixture Genotyping by
Probabilistic Computer Interpretation of Binomially-Sampled Laser Captured
Cell Populations: Combining Quantitative Data for Greater Identification
Information, 53 Sci. & Just. 103 (2013); Mark W. Perlin et al., TrueAllele
A-4207-19T4
56
exhibiting real-world issues developed by a crime laboratory in the course of
their usual casework activity. Three published papers are of this type. 19
Notably here, six of the seven peer-reviewed publications were authored
by Dr. Perlin himself. The one study not authored by Dr. Perlin does note that
he provided professional guidance. 20 PCAST explicitly noted the software
developer's participation in such studies as an impediment to reliable
validation, noting that, "[w]hile it is completely appropriate for method
developers to evaluate their own methods, establishing scientific validity also
requires scientific evaluation by other scientific groups that did not develop
the method." PCAST Report, at 80. That was not done here, where Dr. Perlin,
a developer with a vested interest in the program's scientific acceptance, was
(continued)
Genotype Identification on DNA Mixtures Containing Up to Five Unknown
Contributors, 60 J. Forensic Scis. 857 (2015); Susan A. Greenspoon et al.,
Establishing the Limits of TrueAllele Casework: A Validation Study, 60 J.
Forensic Scis. 1263 (2015) [Establishing the Limits of TrueAllele Casework].
19
See Mark W. Perlin et al., Validating TrueAllele DNA Mixture
Interpretation, 56 J. Forensic Scis. 1430 (2011) [hereinafter Validating
TrueAllele]; Mark W. Perlin et al., New York State TrueAllele Casework
Validation Study, 58 J. Forensic Scis. 1458 (2013); Mark W. Perlin et al.,
TrueAllele Casework on Virginia DNA Mixture Evidence: Computer and
Manual Interpretation in 72 Reported Criminal Cases, 9 PLoS ONE e92837
(2014).
20
See Establishing the Limits of TrueAllele Casework, 60 J. Forensics Scis. at
1276.
A-4207-19T4
57
directly involved. Law enforcement agencies, which also sometimes
participated, likewise share an interest in the continued viability of the
program. In the end, for purposes of reliability in a criminal context, it stands
to reason that such an evaluation should be performed by an expert working on
behalf of someone in defendant's shoes, with full access to the tools required
for evaluation. See United States v. Gissantaner, 417 F. Supp. 3d 857, 880
(W.D. Mich. 2019) (addressing Daubert and the admissibility of STRmix and
noting that "studies and articles . . . have determined that review of
probabilistic genotyping software, independent of that of the developers, is
critical for an assessment of its reliability with respect to use in the courts").
Moreover, despite Dr. Perlin's and the State's insistence that the
TrueAllele program affords analysts a tool for objective analysis, it does n ot
inexorably follow that that analysis is reliable. We consider the concept of
"programmer blindless" a common pitfall of non-independent review. "Just as
writers are often bad at proofreading their own text, programmers are bad at
reading their own code. . . . It is often the case that peers are not truly
independent reviewers because programmers often have similar training —and
thus tend to make the same mistakes." Bellovin et al., 17 Ohio State Tech. L.J.
at 32. Further, even if the program's operation is objective, numerous
judgments regarding the appropriate interpretation of data are already baked
A-4207-19T4
58
into the source code, and may not be conducive to detection, comprehension,
and analysis except by review of that source code. See Katherine Kwong, The
Algorithm Says You Did It: The Use of Black Box Algorithms to Analyze
Complex DNA Evidence, 31 Harv. J. L. & Tech. 275, 291 (2017) (noting that
"[d]ifferent programs incorporate subtly different choices into their algorithms
about how to interpret data, which can yield different results when analyzing
the exact same complex mixture," and that identification of consequent biases
requires a "look at the software"). That is particularly so for a probabilistic
genotyping program, whose output is not conducive to independent calculation
or otherwise verifiable with precision like other analyses. See Christopher D.
Steele & David J. Balding, Statistical Evaluation of Forensic DNA Profile
Evidence, 1 Ann. Rev. Stat. & Its Application 361, 380 (2014) (explaining that
a likelihood ratio "expresses our uncertainty about an unknown event and
depends on modeling assumptions that cannot be precisely verified in the
context of noisy . . . data").
As to judicial opinions, we note that eighteen courts have rejected calls
to allow independent evaluation of TrueAllele's source code, many of which
did so after the issues with STRmix and FST came to light. But critically,
prior determinations of reliability in other jurisdictions entailed no scrutiny of
A-4207-19T4
59
computer science or source code. 21 Instead, the courts depended in large part
on Dr. Perlin's own testimony and the existing validation studies which, even
if diligently conducted and sound, were not truly independent and did not even
evaluate the source code.
The first court to address the question of admissibility was
Commonwealth v. Foley, 38 A.3d 882, 889-90 (Pa. Super. Ct. 2012), where
the court accepted Dr. Perlin's assertion that validation studies are the best
tests of the reliability of source codes. The court reasoned that "scientists can
validate the reliability of a computerized process even if the 'source code'
underlying that process is not available to the public," emphasizing that
making the source code available would have market consequences. Id. at
889. The court reasoned also that TrueAllele "ha[d] been tested and validated
in peer-reviewed studies," citing two studies that had been "published in peer-
reviewed journals" and thus "reviewed by other scholars in the field." Id. at
889-90. At that time, in 2012, TrueAllele had been the subject of two studies,
one laboratory-generated validation study, conducted and authored by Dr.
21
We emphasize that when it comes to balancing the rights of the accused
against other interests, including the intellectual property rights of private
companies, New Jersey errs on the side of disclosure. Chun taught us that.
See generally 194 N.J. at 68-70.
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Perlin himself,22 and one casework validation study, which was also co-
authored by Dr. Perlin. 23 The court made no mention of the fact that Dr. Perlin
was involved in both the validation studies conducted up to that point.
Subsequent courts have placed great emphasis on the observation made in
Foley, without further scrutiny, creating an authority "house of cards." See,
e.g., People v. Superior Court (Chubbs), No. B258569, 2015 WL 139069, at *8
(Cal. App. Ct. Jan. 9, 2015); State v. Daniels, No. 2015CF009320AMB (Fla.
Cir. Ct. Oct. 31, 2018) (slip op. at 3); State v. Wakefield, 9 N.Y.S.3d 540, 541
(Sup. Ct. 2015); State v. Shaw, No. CR-13-575691 (Ohio C.P. Ct. Cuyahoga
Cnty. Oct. 10, 2014) (slip op. at 23); Commonwealth v. Knight, No. 379 WDA
2017, 2017 WL 5951725, at *6 (Pa. Super. Ct. Nov. 29, 2017); State v.
22
Dr. Perlin and his co-author in Information Gap, 4 PLoS One e8327, at 1-2,
compared the effectiveness of newer quantitative computer-based methods,
such as TrueAllele, with that of existing qualitative manual methods in
extracting information from samples with low levels of genetic material . They
found an "information gap between the two approaches," in that the newer
quantitative methods could "extend meaningful interpretation" to samples with
far less material. Id. at 2.
23
Dr. Perlin and his co-authors in Validating TrueAllele, 65 J. Forensic Scis.
at 1443, concluded that the use of genetic calculators like TrueAllele could
improve DNA mixture interpretation in several ways. Ibid. A computer could
process information faster than a human analyst, thereby reducing DNA case
backlogs. Ibid. Genetic calculators could also extract more DNA information
from lower template samples. Ibid. And the use of computers would increase
the objectivity of the analysis, given the concern that prematurely exposing a
human analyst to a suspect's profile could introduce observer bias. Ibid.
A-4207-19T4
61
Watkins, No. 2017-C-1811 (Tenn. Crim. Ct. Davidson Cnty. Dec. 17, 2018)
(slip op. at 13-14).24 Published out-of-state judicial decisions, although
persuasive rather than binding, carry great weight, especially after they are
cited by other courts. A long line of decisions uniformly in favor of a legal
proposition suggests that a legal proposition is generally accepted. We are
mindful, however, that in science, the repetition of authority does not
automatically establish reliability for purposes of a Frye hearing. The cases
identified by the State include a laundry list of admissibility rulings, but to
reiterate, none consider whether the TrueAllele source code itself correctly
implements its methods, which can only be tested in the manner defendant and
amici advocate for here.
We need not risk the same result. Our Supreme Court deemed source-
code review of sufficient import to a reliability determination in Chun, 194
N.J. at 68-70, to order production, and we clearly contemplated the same in
Ghigliotty, 463 N.J. Super. at 384-85, as to the algorithms at issue there. Here,
Mr. Adams explained with particularity his need for full access to the code, not
simply for visual examination, but for execution and testing, and the terms
24
The State also provided this court with an extended list of admissibility
rulings which may be found at Cybergenetics' website. See TrueAllele
Admissibility, Cybergenetics, https://cybgen.com/information/admissibility/
page.shtml (last visited Jan. 27, 2021).
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62
imposed in Cybergenetics' NDA, such as surveillance, time limits, and
restrictions on note-taking and communication, would impede that review.
Indeed, Dr. Perlin's own estimate that it would take an individual more than
eight years to decipher the code by simple visual inspection belies the State's
position that the limited access already offered would be adequate for
meaningful review.
In light of the concerns that arise when examining the "black box"
validation studies, the out-of-state judicial opinions and orders that have
accepted TrueAllele's reliability without source code examination, and errors
found in the source codes of the breathalyzer in Chun, FST, and STRmix,
judges should examine the reliability of such software with healthy skepticism.
Even if the DNA science underpinning probabilistic genotyping analysis has
been proven scientifically valid, computer software such as TrueAllele must
also properly implement that analysis in its source code; the source code must
do as Cybergenetics says it does. We do not suggest that errors found in the
source code of other probabilistic genotyping software necessarily means that
such errors are present in TrueAllele's source code, but we must ensure that the
constitutional rights of criminal defendants are protected by permitting an
adversarial review of TrueAllele's source code to ensure that such errors do not
A-4207-19T4
63
also exist there as well. We therefore conclude that there is a rational basis
under Frye for production.
(ii)
The specificity of the information sought
In his discovery motion, defendant specifically identified the proprietary
information sought. In regard to the validation studies, defendant requested
discovery of all materials generated, including "[a]ll records and electronic
data used as 'input' to the TrueAllele system and the software parameters used
to analyze this data," "[a]ll records and electronic data generated by the
TrueAllele system and/or laboratory personnel during the course of the study,"
"[a]ny analyses . . . including bench notes, measurements, statistics, memos,
summaries, conclusions, tables, graphics, and any resulting publications,
presentations, and reports," "[a]ll communication relating to the design and
results of the study, both within and external to the laboratory," "[a]ll records
of unexpected results, including false positives (false inclusions), false
negatives (false exclusions), and the conditions under which the unexpected
results were granted," "[a]ll records of software glitches, crashes, bugs, or
errors encountered during the study," and "[s]oftware version numbers of the
components of the TrueAllele[] system used for the study."
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64
Defendant further requested "[s]ource code for the version(s) of the
TrueAllele system used in the instant case," including "all software
dependencies such as third-party code libraries, toolboxes, plug-ins, and
frameworks," and "[s]oftware engineering and development materials
describing the development, deployment, and maintenance of the version(s) of
the TrueAllele software system used in the instant case . . . , including the
software engineering documents recommended by organizations such as the
[IEEE] or the Internal Organization for Standardization (ISO)."
Defendant also specifically requested "[c]ommunication logs and records
relating to TrueAllele testing, analysis, and reporting in the instant case,
including requests for technical or procedural assistance, bug/crash reports,
corrective actions, and software updates" along with "[d]ocumentation of
corrective actions for discrepancies and errors."
Finally defendant requested the forensic casefile generated by the New
Jersey State Forensic Laboratory in the matter including: "notes, documents,
and data resulting from each phase of testing and analysis," "documentation
related to the evidence collection and examination by the lab, serological
testing, DNA extraction, quantitation, amplification, electrophoresis, analysis,
and comparison of the samples," and "all positive and negative controls, allelic
ladders, and electronic raw data."
A-4207-19T4
65
Defendant provided the necessary information to justify his
particularized need for the information requested and limited the scope of his
request to that required for an independent analysis and review in this case.
The information requested ensures that TrueAllele's source code operates as
intended and that any changes to the source code have not negatively affected
the intended operation of the program.
(iii)
Safeguarding the company's intellectual property—protective order
Entering a protective order for use as part of the Frye hearing will
accommodate safeguarding the proprietary information while simultaneously
protecting the interests of defendant's liberty and justice. On remand, we
direct the judge to issue a protective order that accomplishes these objectives.
We leave to the discretion of the judge the details of that task. Two points
about that: the judge should retain jurisdiction to enforce the order should that
become necessary; and the judge should follow these remarks.
The parties recognize that the entry of a protective order is necessary
since they invested "[e]xtensive communications" attempting the negotiate one
for the judge to enter. As counsel acknowledged before us, the State made
A-4207-19T4
66
several concessions but "two key areas of disagreement remain." 25 The two
areas pertained to liquidated damages for breach of the order, and the terms of
the inspection itself. We will generally address both.
First, as to the damages, the State insisted that there be a $1,000,000
automatic civil liability "in the event that the proprietary materials are
improperly handled, negligently or otherwise." Moreover, the State required —
on this automatic liability term—that the defense submit to jurisdiction in
Pennsylvania and that the defense obtain liability insurance with $3,000,000 in
coverage.
But, as the Innocence Project points out, a model protective order from
the Northern District of California, whose docket includes among the most
complex and financially consequential patent cases in the world, includes no
provision for financial liability. U.S. Dist. Ct. for the N.D. of Cal., Model
Protective Order for Litigation Involving Patents (Model Protective Order).26
We have not found—and the parties have not provided—any case authorizing
25
For example, an assistant prosecutor wrote in a February 5, 2020 letter to
the judge that the State agreed to a court-ordered protective order, rather than
an NDA; the State removed prerequisites to expert qualifications prior to
review; the requirement that the defense expert's notes be turned over to
Cybergenetics; the imposition of significant fees for inspections; and
participation of Cybergenetics' attorneys during the inspection.
26
Available at https://www.cand.uscourts.gov/forms/model-protective-orders/
(last visited Jan. 27, 2020).
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67
disclosure of source code and related proprietary information under a
protective order with the restrictions as rigid as Cybergenetics' terms,
particularly as to liquidated automatic financial liability for breach of a
protective order. Indeed, defendant produced the reasonable protective order
issued in Illinois governing access to the source code and related documents by
STRmix, and there is no such provision.
Acknowledging that there must be teeth to the protective order, in a
proposed order for the judge's consideration, defendant reasonably proposed
the following sanctions for breach: "Any person who willfully violates the
terms of this Order is subject to civil and criminal sanctions, in addition to any
other remedy or proceeding allowed by law." Defendant did not specifically
identify the civil and criminal sanctions, but as counsel for ACDL-NJ pointed
out at oral argument, such sanctions could generally include license
suspension, disciplinary actions, and civil penalties, just to mention a few.
Civil and criminal contempt charges for violating a court order are also a
potential consequence for breach. See In re Adoption of N.J.A.C. 5:96 & 5:97,
221 N.J. 1, 17-18 (2015) (noting that Rule 1:10-3 provides relief to a litigant
for another party's failure to abide by a court order); State v. McCray, 458 N.J.
Super. 473, 493 (App. Div. 2019) (noting that "[t]he goal of the criminal
contempt statute[, N.J.S.A. 2C:29-9(a),] is to promote compliance with judicial
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orders by punishing those who purposely or knowingly fail to comply with
those orders").
Second, as to the terms of the inspection, the State offered to host
defense counsel and their experts at the prosecutor's office, which obviates the
need for travel, but then prohibited meaningful inspection by permitting only
handwritten notes of 170,000 lines of code. According to Dr. Perlin,
comprehending the code through such an austere visual inspection would
likely take more than eight years. Moreover, the State required the inspection
to be supervised and would not allow photographs or copying of any material.
But, as the Innocence Project points out, the model protective order from
the Northern District of California includes provisions explicitly permitting
certain personnel other than the experts themselves access to the sensitive
information, Model Protective Order §§ 7.2, 7.3, and allows the printing of
portions of the source code for purposes of analysis, id. § 9(d). Defendant's
proposed order, on the other hand, provides reasonable protections, including a
prohibition on disclosure to any individual with "any direct or indirect
commercial or employment interest in competing software products."
Although a requirement that all notes be handwritten may be included to
prevent unauthorized copying and disclosure of source code, such a
requirement could be impractical given the form and syntax of source code.
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Such a requirement may be considered "burdensome in the extreme" because
"[m]odern computer source code was never intended to be handwritten even by
the original programmer." Lydia Pallas Loren & Andy Johnson-Laird,
Computer Software-Related Litigation: Discovery and the Overly-Protective
Order, 6 Fed. Cts. L. Rev. 1, 47 (2012).
As defendant and amici point out, jurisdictions across the country often
authorize disclosure of source code in civil litigation to one extent or another
on an adequate showing, subject only to a court-issued protective order. See,
e.g., WeRide Corp. v. Kun Huang, 379 F. Supp. 3d 834, 854 (N.D. Cal. 2019);
Northrop v. Inventive Commc'ns, L.L.C., 199 F.R.D. 334, 335-36 (D. Neb.
2000); Jagex Ltd. v. Impulse Software, 273 F.R.D. 357, 358 (D. Mass. 1997);
Dynamic Microprocessor Assocs. v. EKD Comput. Sales, 919 F. Supp. 101,
106 (E.D.N.Y. 1996). The provisions entailed in each order tend to reflect a
balance of the rights of the interested parties in light of the circumstances that
are attendant to each case.
(iv)
Any other relevant factors unique to the facts of the case
Unique to this case is the type of software that is proposed to be used.
Probabilistic genotyping differs from traditional methods of DNA analysis in
the resulting likelihood ratio that it provides. Rather than providing a result
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which can be verified against a true value, such as a breathalyzer being
compared to a blood draw to ascertain the true blood alcohol content and
whether the breathalyzer is within an acceptable margin of error, a likelihood
ratio has no precise, independently ascertainable value with which to compare
to ensure that the software is providing an acceptable estimation. As
Christopher D. Steele and David J. Balding explain,
[l]aboratory procedures to measure a physical quantity
such as a concentration can be validated by showing
that the measured concentration lies within an
acceptable range of error relative to the true
concentration. Such validation is infeasible for
software aimed at computing a [likelihood ratio]
because it has no underlying true value (no equivalent
to a true concentration exists). The [likelihood ratio]
expresses our uncertainty about an unknown event and
depends on modeling assumptions that cannot be
precisely verified in the context of noisy [crime scene
profile] data.
[Steele & Balding, 1 Ann. Rev. Stat. & Its Application
at 380 (fourth alteration in original).]
Additionally, Mr. Adams noted that "[s]ince the likelihood calculations are
dependent on the statistical models . . . underlying the probabilistic software,
any software behaviors affecting the models will necessarily impact the
calculated likelihoods and ultimately the reported likelihood ratio." Because
probabilistic genotyping analysis cannot be tested to ensure that is reaching a
near-correct result by comparing it to a true value, the closest substitute is to
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examine the way in which the source code is written to ensure that it functions
as the science underpinning probabilistic genotyping necessitates. This is
particularly important when even slight changes in the statistical models
converted into source code can affect the resulting likelihood ratio. In this
way, STRmix and FST serve as important cautionary tales.
Additionally, Drs. Heimdahl and Matthews note that TrueAllele's
software integrates multiple scientific disciplines, therefore requiring cross -
disciplinary validation to determine reliability. During oral argument, they
informed us that each discipline will validate a program under different
standards. In particular, V&V in the computer science field cannot be
achieved without a thorough examination of the source code which translates
validated probabilistic genotyping into executable software. See Natalie Ram,
Innovating Criminal Justice, 112 Nw. U. L. Rev. 659, 688 (2018) (noting that
"[c]omputer scientists . . . have shown that black-box evaluation of systems is
the least powerful of a set of available methods for understanding and
verifying system behavior. More powerful and effective is white-box testing,
in which the person doing a test can see the system's code and uses that
knowledge to more effectively search for bugs" (alteration and omission in
original) (internal citations and quotation marks omitted)). So, while
TrueAllele may be generally accepted in the field of DNA forensics as
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methodologically sound, such validation may be too narrow, thereby making
access to the source code even more important to test whether Dr. Perlin's
testimony has gained general acceptance in the computer science community
to which it also belongs.
VI.
As technology proliferates, so does its use in criminal prosecutions.
Courts must endeavor to understand new technology—here, probabilistic
genotyping—and allow the defense a meaningful opportunity to examine it.
Without scrutinizing its software's source code—a human-made set of
instructions that may contain bugs, glitches, and defects—in the context of an
adversarial system, no finding that it properly implements the underlying
science could realistically be made. Consequently, affording meaningful
examination of the source code, which compels the critical independent
analysis necessary for a judge to make a threshold determination as to
reliability at a Frye hearing, is imperative.
In summary, defendant articulated a particularized need for the
proprietary source code and related information for use at the Frye hearing by
(1) demonstrating a rational basis for ordering the State to attempt to produce
it, including through expert testimony supporting the claim for disclosure; (2)
providing specificity for the information sought; (3) showing through
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examples from other jurisdictions that the company's intellectual property can
be safeguarded by a protective order; and (4) demonstrating that source-code
review is particularly crucial to evaluating the unique technology at issue here.
Anything less than full access contravenes fundamental principles of
fairness, which indubitably compromises a defendant's right to present a
complete defense.
Reversed and remanded for further proceedings. On remand, the judge
is directed to compel the discovery of TrueAllele's source code and related
materials pursuant to an appropriate protective order, then complete his
gatekeeping function at the continued Frye hearing. We do not retain
jurisdiction.
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