Thursday, October 18, 2018
Page 3
Court of Appeal:
Defendant Can’t Compel Production of DNA Analysis Software
By a MetNews Staff Writer
The Fourth District Court of Appeal yesterday affirmed denial of an accused’s bid to compel production of the DNA analysis software, its source code and user manuals which the defense contends is needed to address the reliability of the identification of samples collected from a crime scene.
Justice William Dato of Div. One noted that the company that made the software, and owns it, is not a part of the prosecution team and, he declared, it must be afforded the chance to argue its interests before the trial court.
Prosecutors in the case against Florencio J. Dominguez, accused of conspiracy to commit murder, used a software program called STRmix to analyze a mix of DNA found inside a pair of gloves used in the killing. Dominguez sought production of the STRmix software, as well as its manuals and source code.
The San Diego Police Department’s crime lab had obtained the software from the U.S. distributor of the software’s creator, the Institute of Environmental Science and Research Limited (“ESR”), which is owned by the government of New Zealand.
Response to Request
In response to the defendant’s discovery request, the prosecution asserted that ESR’s copyright in the manuals prevented their disclosure, and that the software itself would not work without a license. The government also indicated that only ESR had access to the STRmix source code, and the internal validation information Dominguez had also requested.
The prosecutor indicated that ESR would produce all the requested items if Dominguez entered into a non-disclosure agreement with it. Dominguez’s counsel refused this offer, explaining that such an agreement might render the evidence obtained useless in preparing a defense.
San Diego Superior Court Judge Charles G. Rogers heard the defendant’s motion to compel, and granted it based on his finding that ESR was a member of the prosecution team. The judge indicated his intent to issue a protective order upon production of the evidence.
ESR’s Role
Dato focused on the fact that two of the items requested, the STRmix source code and internal validation data, were in the exclusive possession of ESR. He disagreed with Rogers’ finding that the institute was part of the prosecution team, saying:
“Foremost, we observe that ESR provided no input or assistance specific to Dominguez’s case—except insofar as the prosecution’s use of its software program can be deemed tantamount to ESR investigating the case. Indeed, were it not for this discovery request, ESR would likely have no knowledge of the matter whatsoever.”
He also rejected Dominquez’s contention that ESR’s training and occasional technical support for STRmix rendered it a prosecution team member.
“In sum,” he declared, “it appears that any interaction between ESR and the lab was far from significant, especially with respect to Dominguez’s particular case.”
STRmix Program
Dato noted that STRmix program was in the prosecution’s possession.
He wrote:
“With respect to the software program itself, the People urge it falls outside the scope of our criminal discovery provisions because it is solely ‘equipment’ and thus not ‘exculpatory evidence’ within the meaning of section 1054.1, subdivision (e). While Dominguez’s briefing addresses multiple categories of evidence, he does not squarely address what about the software would be exculpatory.
“On this point, we think the People have the better argument. Nothing in the record before us indicates that the software suffered a problem that might have affected the results in this case.”
User Manuals
The jurist, turning to the issue of the manuals, continued:
“As we understand Dominguez’s argument, he contends that as a matter of law his interests overcome any possible trade secret privilege that could be claimed.
“But we do not see this issue as one amenable to decision as a matter of law, completely lacking any input from the party claiming a right (i.e., here, ESR). While Dominguez’s interests may ultimately trump those of ESR’s, we conclude that the court could not fully consider these issues without having ESR present. Indeed, at the hearing, the prosecutor noted ESR’s absence ad nauseam. We think he was right to do so. Simply put, although the trial court assumed that ESR was invoking its privileges, nothing before it illuminated the full extent of the interests ESR could assert. ESR must be afforded the opportunity to be heard before the trial court balances the interests and makes a decision”
The case is People v. Superior Court (Dominguez), 2018 S.O.S. 5007.
ESR filed an amicus brief in support of the prosecution. The ACLU, the Innocence Project and similar groups, and the Legal Aid Society of New York filed briefs supporting Dominguez.
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