In State v. Pickett, the New Jersey Appellate Division issued a massive constitutional ruling that will reverberate well beyond New Jersey’s borders. After a shooting, police recovered a gun. The State’s lab could not identify the contributor of a DNA sample taken from the gun. So, the investigators sent the sample to Cybergenetics Corp. Laboratory, a private firm in Pittsburgh, for analysis using its proprietary TrueAllele computer software program. The software was novel, so it was challenged in a Frye hearing. As part of the hearing, defense experts requested the software’s source code that “would allow that expert to independently test whether the evidentiary software operates as intended.” The trial court denied the request, holding that the source code was a trade secret. The Appellate Division reversed and held that “[h]iding the source code is not the answer. The solution is producing it under a protective order.”
