A San Diego appeals court ruled this week that prosecutors don’t have to give a man defending a murder charge the software, source code and other materials that make up a powerful new DNA analysis tool that connects him to a decade-old killing.
The unanimous ruling by a three-judge panel of the 4th District Court of Appeal concluded that the makers of the computer program STRmix, a private company that developed the program and sells it to crime labs around the nation, are not part of the prosecution team. Defense Attorney Matthew Speredelozzi would have to sign a restrictive nondisclosure agreement first, claiming the code was a privileged trade secret it could protect. The lawyer contended such a condition violated his client's constitutional rights, and filed a motion to get the District Attorney's Office to turn over the code as part of the pre-trial discovery.
Prosecutors argued they could not force the company to do so.
Because of that, the San Diego County District Attorney’s Office can’t be forced to hand over the company’s material, which reveals how the program works and the software it runs on. The decision reverses a ruling in March by Superior Court Judge Charles Rogers, who concluded that STRmix provided crucial evidence linking defendant Dominguez to the killing, and thus prosecutors should hand it over.
The dispute centered on an emerging area of contention in criminal courts, where the use of more sophisticated forensic tools that rely on computer algorithms is becoming more common. Many of these tools are developed by private companies who guard the source code and other techniques that drive the tools.
Under state laws that dictate discovery — the legal process under which each side is required to exchange information — as well as U.S. Supreme Court rulings that say what evidence prosecutors have to provide to defendants, that work by ESR is not enough to qualify them as part of the prosecution team, Associate Justice William Dato wrote.
That was the key question in the case that forced the issue. Speredelozzi, the lawyer for Dominguez, had tried to get access to the source code, software, user manual for the program and validation studies — which would show how well it works — so his hired expert could examine the source code to determine how the program is working.
ESR said in court papers that developing STRmix took 27,600 hours of work, and it has been validated in 33 scientific publications. The company has said it allows defense lawyers to examine the code but the non-disclosure agreement is needed to protect the company’s product.
Technology including things like facial recognition software and risk assessment tools that determine how dangerous someone might be are developed by private companies and not technically in possession of prosecution agencies, putting them out of reach for defendants to examine.
©2018 The San Diego Union-Tribune Distributed by Tribune Content Agency, LLC.
