246 A.3d 279
N.J. Super. Ct. App. Div.2021Background:
- Defendant Pickett was charged in a 2017 shooting; the State's DNA expert (Dr. Mark Perlin) used Cybergenetics’ proprietary TrueAllele probabilistic genotyping software to link Pickett to evidence at issue and the State sought a Frye hearing on admissibility.
- Several samples required probabilistic genotyping because they were low-quantity or complex DNA mixtures; TrueAllele computes likelihood ratios via complex statistical models implemented in proprietary source code.
- Defense sought full access to TrueAllele source code and supporting development/testing documentation to test whether the software correctly implements its methods; Cybergenetics resisted, offering highly restrictive inspection terms and treating the code as a trade secret.
- The trial court denied defense access before cross-examination of the State’s expert; defendant appealed to the Appellate Division and the court granted amici participation (e.g., ACLU, Innocence Project, AG).
- The Appellate Division, after independent review of expert declarations, validation studies, PCAST guidance, and out-of-state developments (including errors found in STRmix and FST after source-code review), held that defendants may obtain source code under an appropriate protective order if they show particularized need; it reversed and remanded for production and continued Frye proceedings.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1) Is defense entitlement to TrueAllele source code for a Frye reliability hearing required? | State: Frye reliability satisfied by Dr. Perlin’s testimony, peer-reviewed/validation studies, and prior admissibility rulings; source code unnecessary. | Pickett: Full source-code access is essential to test whether the software correctly implements its methods and to expose coding errors or biases. | Court: Defendant entitled to source code and related documentation for Frye if he demonstrates particularized need. |
| 2) Does Cybergenetics’ trade-secret claim bar disclosure? | State/AG: Source code is a trade secret; protective restrictions are necessary to protect commercial interests. | Pickett: Trade-secret protection cannot conceal information needed for a fair trial; protective orders can adequately safeguard IP. | Court: Trade-secret status does not preclude disclosure in criminal cases; judge must balance and may order production under a protective order. |
| 3) Are developer-led validation studies and prior judicial rulings sufficient to establish general acceptance/reliability? | State: Validation studies, publications, and out-of-state rulings accepting TrueAllele suffice under Frye. | Pickett: Many studies were developer-involved; precedent is limited because none examined source code; STRmix/FST show testing alone can miss implementation errors. | Court: Validation studies and rulings are insufficient substitutes for adversarial, independent source-code review when particularized need is shown. |
| 4) Can an appropriate protective order reconcile disclosure with IP protection? | State: Offered supervised inspection and NDA-like terms; proposed liquidated damages and restrictive controls. | Pickett: State’s proposed terms (e.g., note restrictions, surveillance, automatic fines) would thwart meaningful review; civil protective orders used in other jurisdictions suffice. | Court: Yes — a court-designed protective order can protect IP while allowing meaningful expert review; trial judge must craft and enforce it. |
Key Cases Cited
- Frye v. United States, 293 F. 1013 (D.C. Cir. 1923) (establishes general-acceptance test for scientific evidence)
- Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579 (U.S. 1993) (articulates federal gatekeeping framework discussed but not adopted)
- State v. Chun, 194 N.J. 54 (N.J. 2008) (NJ Supreme Court ordered production of proprietary source code for independent review)
- State v. J.L.G., 234 N.J. 265 (N.J. 2018) (explains NJ.R.E. 702 gatekeeping and three reliability prongs)
- State v. Harvey, 151 N.J. 117 (N.J. 1997) (describes Frye general-acceptance inquiry)
- State v. Ghigliotty, 463 N.J. Super. 355 (App. Div. 2020) (requires defendant to show rational basis/particularized need before ordering production of proprietary algorithms)
- State in the Interest of A.B., 219 N.J. 542 (N.J. 2014) (defendant entitled to access raw materials integral to an effective defense)
- Commonwealth v. Foley, 38 A.3d 882 (Pa. Super. Ct. 2012) (accepted validation-based admissibility without source-code review)
- People v. Williams, 147 N.E.3d 1131 (N.Y. 2020) (discusses reliance on prior admissibility rulings and need for independent assessment)