28 Cal. App. 5th 223
Cal. Ct. App. 5th2018Background
- Defendant Dominguez is charged with conspiracy to commit murder; key evidence is DNA from blood-soaked gloves, including a complex, low-template mixture on the gloves' interior analyzed by STRmix.
- STRmix is a proprietary probabilistic genotyping program developed/owned by ESR and distributed in the U.S. by NicheVision; the San Diego PD crime lab purchased a license, received initial training/support, and validated STRmix locally.
- Defense requested four categories of STRmix-related materials: (1) user manual; (2) software; (3) source code; and (4) ESR internal validation studies. ESR conditioned production on execution of a nondisclosure agreement (NDA) and claimed trade secret/copyright protections.
- Trial court granted defendant’s motion to compel all items, finding ESR part of the prosecution team and rejecting the NDA as a solution; People sought writ relief.
- The Court of Appeal considered (a) who possessed each item, (b) whether ESR is part of the prosecution team so the People could be compelled to produce ESR-held materials, and (c) whether the People must produce software/manuals given trade-secret/copyright concerns and the statutory/procedural framework for criminal discovery.
Issues
| Issue | Dominguez's Argument | People/ESR's Argument | Held |
|---|---|---|---|
| Whether ESR is a member of the prosecution team (imputing ESR possession/knowledge to the People) | ESR provided software, training, upgrades, and support used to generate evidence so it should be treated as part of the prosecution team | ESR merely sold/maintains a tool; it did not investigate or participate in this case and had minimal interaction with the lab | ESR is not a prosecution-team member; People need not produce materials solely in ESR's possession |
| Whether the People must produce STRmix software (program binary) | Defense needs the software to inspect the "black box" and test for errors affecting results | Software is equipment; no evidence it affected results; production not required absent a factual showing of problems | Refused to compel production of the software at this juncture; mere speculation about black-box risk insufficient |
| Whether the People must produce source code and ESR internal validation studies (materials in ESR sole possession) | Defense contends these are necessary for meaningful testing and cross-examining STRmix outputs | ESR exclusively possesses these items and claims trade secret/copyright; People lack control to produce them | Source code and ESR internal validation studies are in ESR's exclusive possession; People cannot be compelled to produce them |
| Whether the user manual must be produced and whether ESR was afforded procedural opportunity to assert trade-secret/copyright rights | Defense says manual is potentially exculpatory and NDA access is inadequate; needs access to test/attack STRmix results | People/ESR assert trade-secret and copyright protections and that ESR must be given opportunity to be heard under Evidence Code trade-secret procedures | Trial court’s order requiring production of the manual vacated; remanded for further proceedings giving ESR an opportunity to be heard and for the trial court to apply proper trade-secret/copyright balancing and statutory disclosure rules |
Key Cases Cited
- Brady v. Maryland, 373 U.S. 83 (U.S. 1963) (prosecution must disclose material exculpatory evidence)
- Kyles v. Whitley, 514 U.S. 419 (U.S. 1995) (Brady duty extends to evidence known to others acting on the government's behalf)
- In re Littlefield, 5 Cal.4th 122 (Cal. 1993) (statutory discovery covers materials in possession or reasonably accessible to prosecution)
- People v. Superior Court (Barrett), 80 Cal.App.4th 1305 (Cal. Ct. App. 2000) (distinguishing third-party materials vs. investigatory materials of agencies; subpoena process for third parties)
- IAR Systems Software, Inc. v. Superior Court, 12 Cal.App.5th 503 (Cal. Ct. App. 2017) (analysis for when outsiders are imputed to prosecution team; agency/control focus)
- People v. Uribe, 162 Cal.App.4th 1457 (Cal. Ct. App. 2008) (examining when a third-party forensic exam is investigative and thus imputable)
- Bridgestone/Firestone, Inc. v. Superior Court, 7 Cal.App.4th 1384 (Cal. Ct. App. 1992) (procedure and burden for resolving trade-secret disputes under Evidence Code)