1 00:00:05,920 --> 00:00:07,680 Speaker 1: Crime Stories with Nancy Grace. 2 00:00:14,320 --> 00:00:17,439 Speaker 2: A lot happening in the Brian Coburger case. Motions being 3 00:00:17,520 --> 00:00:21,880 Speaker 2: filed left and right, the judge weighing them very carefully 4 00:00:22,040 --> 00:00:26,160 Speaker 2: and usually not only ruling, but ruling along with a 5 00:00:26,239 --> 00:00:31,600 Speaker 2: written memoranda. We have the motions at crime stories and 6 00:00:31,680 --> 00:00:38,440 Speaker 2: crimeonline dot Com. Let's hear key motions and rulings critical 7 00:00:38,800 --> 00:00:45,800 Speaker 2: to the prosecution of quadruple murder suspect Brian Coburger. 8 00:00:45,880 --> 00:00:48,320 Speaker 3: In the District Court of the Second Judicial District of 9 00:00:48,360 --> 00:00:50,800 Speaker 3: the State of Idaho and in for the County of Letah, 10 00:00:50,920 --> 00:00:54,400 Speaker 3: State of Idaho, Plaintiff versus Brian C. Coburger, Defendant, case 11 00:00:54,480 --> 00:00:57,040 Speaker 3: number c R two nine DASH two two DASH two 12 00:00:57,080 --> 00:01:00,320 Speaker 3: eight zero five. Motion for Protective Order comes now the 13 00:01:00,320 --> 00:01:03,240 Speaker 3: State of Idaho by and through the Leytaw County Prosecuting 14 00:01:03,280 --> 00:01:06,560 Speaker 3: Attorney and respectfully moves the Court for a protective order 15 00:01:06,600 --> 00:01:11,560 Speaker 3: pursuant to ICR sixteen one for information related to investigative 16 00:01:11,560 --> 00:01:15,840 Speaker 3: genetic genealogy. This case arises from a quadruple homicide. Law 17 00:01:15,880 --> 00:01:18,640 Speaker 3: enforcement found the DNA of a potential suspect at the 18 00:01:18,680 --> 00:01:21,680 Speaker 3: crime scene, and the FBI submitted the DNA to one 19 00:01:21,800 --> 00:01:25,959 Speaker 3: or more publicly available genetic genealogy services to determine potential 20 00:01:26,000 --> 00:01:30,120 Speaker 3: relatives of the suspect. The FBI then used common genealogical 21 00:01:30,160 --> 00:01:33,360 Speaker 3: techniques to develop a family tree leading to defendant. The 22 00:01:33,400 --> 00:01:36,440 Speaker 3: state seeks to protect from disclosure the names and personal 23 00:01:36,480 --> 00:01:39,639 Speaker 3: information of the hundreds of innocent relatives on the family tree, 24 00:01:39,680 --> 00:01:43,240 Speaker 3: the names of the publicly available genetic genealogy services used, 25 00:01:43,480 --> 00:01:47,920 Speaker 3: and certain h two other information described below. The disclosure 26 00:01:48,080 --> 00:01:50,600 Speaker 3: of this information is not required by Rule sixteen of 27 00:01:50,600 --> 00:01:53,600 Speaker 3: the Idaho Criminal Rules and should be protected from disclosure 28 00:01:53,680 --> 00:01:57,080 Speaker 3: for the good cause described below, including the state's privilege 29 00:01:57,120 --> 00:01:59,960 Speaker 3: to protect the identity of informers as described in IDOL 30 00:02:00,280 --> 00:02:04,560 Speaker 3: Rule of Evidence five oh nine. Factual background. On November thirteen, 31 00:02:04,600 --> 00:02:07,760 Speaker 3: twenty twenty two, law enforcement found the bodies of Madison Mogan, 32 00:02:07,840 --> 00:02:11,280 Speaker 3: Kaylegan Zavez, Xana Cronodle, and Ethan Chapin at one one 33 00:02:11,400 --> 00:02:14,400 Speaker 3: two two King Road in Moscow, Idaho. All four victims 34 00:02:14,440 --> 00:02:17,800 Speaker 3: died from apparent knife wounds. Law enforcement found a k 35 00:02:18,000 --> 00:02:20,400 Speaker 3: bar knife sheath on a bed next to the bodies 36 00:02:20,400 --> 00:02:23,720 Speaker 3: of Madison and Kayley. The sheath was faced down and 37 00:02:23,840 --> 00:02:27,040 Speaker 3: partially under both Madison's body and the comforter on the bed. 38 00:02:27,560 --> 00:02:30,320 Speaker 3: Law enforcement seesed the kbar knife sheath pursuant to a 39 00:02:30,360 --> 00:02:33,680 Speaker 3: search warrant. The Idaho State Police Lab in Meridian, Idaho 40 00:02:33,840 --> 00:02:36,960 Speaker 3: located DNA on the k bar knife sheath. The ISP 41 00:02:37,120 --> 00:02:40,080 Speaker 3: laboratory determined the DNA came from a single source and 42 00:02:40,240 --> 00:02:43,240 Speaker 3: that the source was mail. Once law enforcement had single 43 00:02:43,240 --> 00:02:46,320 Speaker 3: source DNA from the k bar knife sheath, they conducted 44 00:02:46,360 --> 00:02:50,800 Speaker 3: what is called a short tandem repeat str analysis. STR 45 00:02:50,919 --> 00:02:55,040 Speaker 3: DNA analysis involves looking at twenty regions within human DNA 46 00:02:55,120 --> 00:02:58,160 Speaker 3: and allows law enforcement to make a direct comparison between 47 00:02:58,320 --> 00:03:02,919 Speaker 3: two str DNA profile. Law enforcement submitted the str DNA 48 00:03:03,000 --> 00:03:06,320 Speaker 3: profile obtained from the kbar knife sheath to the Combined 49 00:03:06,400 --> 00:03:10,680 Speaker 3: DNA Index System CODIS, a database of str DNA profiles 50 00:03:10,680 --> 00:03:14,560 Speaker 3: from convicted offenders, arrestees, and crime scene evidence. To identify 51 00:03:14,560 --> 00:03:18,080 Speaker 3: the source of the DNA, no match was found. Unable 52 00:03:18,080 --> 00:03:21,760 Speaker 3: to find a match using str DNA analysis, law enforcement 53 00:03:21,840 --> 00:03:25,560 Speaker 3: decided to use investigative genetic genealogy to find a lead. 54 00:03:25,919 --> 00:03:30,919 Speaker 3: Genetic genealogy allows individuals to trace page three their lineage 55 00:03:31,000 --> 00:03:34,560 Speaker 3: or connect with unknown family members using DNA. Typically, it 56 00:03:34,600 --> 00:03:37,800 Speaker 3: involves sending a DNA sample, such as a tube of saliva, 57 00:03:37,920 --> 00:03:41,560 Speaker 3: to a genetic genealogy service like ancestry dot com or 58 00:03:41,600 --> 00:03:45,320 Speaker 3: twenty three and meter. The genetic genealogy service then creates 59 00:03:45,320 --> 00:03:51,040 Speaker 3: a single nucleotide polymorphism SNP profile to use for genealogical purposes. 60 00:03:51,560 --> 00:03:56,040 Speaker 3: A SNP profile is different than str DNA profile and 61 00:03:56,160 --> 00:04:00,400 Speaker 3: is used more often for genealogical purposes. The genetic genieology 62 00:04:00,520 --> 00:04:03,920 Speaker 3: service then uses an algorithm to compare the user's SNP 63 00:04:04,120 --> 00:04:08,400 Speaker 3: profile to SMP profiles submitted to the genetic genealogy service 64 00:04:08,440 --> 00:04:11,960 Speaker 3: by other users to determine ancestry and potential relatives. The 65 00:04:12,040 --> 00:04:15,120 Speaker 3: genetic genealogy service shares with the user a list of 66 00:04:15,120 --> 00:04:19,640 Speaker 3: potential relatives and, depending on the specific genetic genealogy service, 67 00:04:19,960 --> 00:04:24,679 Speaker 3: personally identifying information on those individuals, like their name, email address, 68 00:04:24,760 --> 00:04:27,200 Speaker 3: and the amount of DNA the user shares with the 69 00:04:27,200 --> 00:04:31,440 Speaker 3: potential relatives. The user does not receive any genetic information 70 00:04:31,520 --> 00:04:35,800 Speaker 3: pertaining to other database users, ie users, DNA profiles are 71 00:04:35,839 --> 00:04:39,480 Speaker 3: not shared with each other. This same process, used frequently 72 00:04:39,520 --> 00:04:42,000 Speaker 3: by members of the public, can also be used by 73 00:04:42,080 --> 00:04:45,719 Speaker 3: law enforcement as part of their investigation. A technique referred 74 00:04:45,760 --> 00:04:51,560 Speaker 3: to as investigative genetic genealogy or IgG. Once a publicly 75 00:04:51,600 --> 00:04:55,760 Speaker 3: available genetic genealogy service shows law enforcement potential relatives of 76 00:04:55,800 --> 00:04:59,960 Speaker 3: the suspect, law enforcement applies traditional investigative and genial life 77 00:05:00,000 --> 00:05:02,880 Speaker 3: logical methods to build a family tree in an effort 78 00:05:02,880 --> 00:05:05,320 Speaker 3: to follow the tree to the suspect or a close 79 00:05:05,360 --> 00:05:09,080 Speaker 3: relative of the suspect. Family trees can be used to 80 00:05:09,200 --> 00:05:14,440 Speaker 3: narrow down a potential suspect based on factors such as age, gender, opportunity, 81 00:05:14,800 --> 00:05:20,000 Speaker 3: known physical page four, characteristics of the suspect, etc. In 82 00:05:20,080 --> 00:05:24,080 Speaker 3: this case, investigators used IgG to begin the process of 83 00:05:24,160 --> 00:05:27,560 Speaker 3: developing a lead to the individual who left DNA on 84 00:05:27,600 --> 00:05:31,200 Speaker 3: the k bar knife sheath. The Idaho State Police utilized 85 00:05:31,200 --> 00:05:35,039 Speaker 3: a private laboratory to develop a SMP profile from the 86 00:05:35,120 --> 00:05:38,960 Speaker 3: DNA on the kbar knife sheath. The private laboratory started 87 00:05:39,080 --> 00:05:42,520 Speaker 3: using genetic genealogy to develop a family tree, but after 88 00:05:42,600 --> 00:05:46,520 Speaker 3: law enforcement decided the FBI would take over, the private 89 00:05:46,600 --> 00:05:50,279 Speaker 3: laboratory ceased its efforts and sent the SMP profile to 90 00:05:50,360 --> 00:05:54,520 Speaker 3: the FBI. The FBI uploaded the SMP profile to one 91 00:05:54,720 --> 00:05:59,400 Speaker 3: or more publicly available genetic genealogy services to identify possible 92 00:05:59,440 --> 00:06:03,000 Speaker 3: family member of the suspect based on shared genetic data. 93 00:06:03,400 --> 00:06:07,279 Speaker 3: The FBI could then view through the Genetic Genealogy Services 94 00:06:07,320 --> 00:06:11,080 Speaker 3: portal information regarding potential relatives of the suspect who left 95 00:06:11,200 --> 00:06:14,960 Speaker 3: DNA on the k bar knife sheath. Based on information 96 00:06:15,040 --> 00:06:18,360 Speaker 3: the FBI could see in the Genetic Genealogy Service portal, 97 00:06:18,560 --> 00:06:21,480 Speaker 3: the FBI went to work building a family trees of 98 00:06:21,560 --> 00:06:24,520 Speaker 3: the genetic relatives to the suspect DNA left at the 99 00:06:24,560 --> 00:06:27,279 Speaker 3: crime scene in an attempt to identify the contributor of 100 00:06:27,320 --> 00:06:31,000 Speaker 3: the unknown DNA. The FBI built the family tree using 101 00:06:31,080 --> 00:06:33,840 Speaker 3: the same tools and methods used by members of the 102 00:06:33,839 --> 00:06:37,320 Speaker 3: public who wished to learn more about their ancestors. For example, 103 00:06:37,760 --> 00:06:41,920 Speaker 3: the FBI consulted social media, viewed vital records such as 104 00:06:41,960 --> 00:06:45,880 Speaker 3: birth and death certificates, and viewed other information already contained 105 00:06:45,920 --> 00:06:49,240 Speaker 3: in the user portal for the Genetic Genealogy Service, including 106 00:06:49,360 --> 00:06:54,040 Speaker 3: unverified information submitted by other users of the Genetic Genealogy Service. 107 00:06:54,400 --> 00:06:58,680 Speaker 3: The FBI also consulted subscription based databases available to law 108 00:06:58,720 --> 00:07:04,000 Speaker 3: enforcement for informationation on page five individual people. The product 109 00:07:04,040 --> 00:07:07,240 Speaker 3: of the genealogy conducted by the FBI was a family 110 00:07:07,320 --> 00:07:11,080 Speaker 3: tree that contained the name, birth date, and death date 111 00:07:11,120 --> 00:07:14,160 Speaker 3: if applicable of hundreds of relatives as well as their 112 00:07:14,160 --> 00:07:19,280 Speaker 3: familial connections between each other and the suspect, Brian C. Coburger. 113 00:07:19,720 --> 00:07:22,600 Speaker 3: The FBI then sent to local law enforcement a tip 114 00:07:22,640 --> 00:07:27,520 Speaker 3: to investigate defendant. The IgG process pointed law enforcement toward defendant, 115 00:07:27,800 --> 00:07:31,640 Speaker 3: but it did not provide law enforcement with substantive evidence 116 00:07:31,680 --> 00:07:34,720 Speaker 3: of guilt. The FBI did not, for example, conduct a 117 00:07:34,760 --> 00:07:38,080 Speaker 3: direct comparison between the SNP profile from the k bar 118 00:07:38,200 --> 00:07:42,080 Speaker 3: knife sheath and defendant's SMP profile. That type of direct 119 00:07:42,120 --> 00:07:46,520 Speaker 3: comparison required the more traditional str DNA analysis, which was 120 00:07:46,560 --> 00:07:50,480 Speaker 3: conducted by the Idaho State Police, not the FBI. Prior 121 00:07:50,520 --> 00:07:54,280 Speaker 3: to the FBI's IgG efforts, the ISP Laboratory developed the 122 00:07:54,280 --> 00:07:58,280 Speaker 3: traditional str DNA profile from the DNA found on the 123 00:07:58,360 --> 00:08:02,440 Speaker 3: k bar knife sheath. After identification of defendant, law enforcement 124 00:08:02,480 --> 00:08:05,640 Speaker 3: recovered trash from the home of defendant's parents, and ISP 125 00:08:05,800 --> 00:08:09,600 Speaker 3: Laboratory did SDR DNA analysis of items from the trash 126 00:08:09,840 --> 00:08:13,920 Speaker 3: for comparison to the unknown crime scene DNA. The comparisons 127 00:08:13,920 --> 00:08:16,920 Speaker 3: indicated the DNA found on the trash belonged to the 128 00:08:16,920 --> 00:08:20,640 Speaker 3: biological father of the individual who left the DNA on 129 00:08:20,720 --> 00:08:23,680 Speaker 3: the k bar knife sheath pursuant to a search warrant. 130 00:08:23,840 --> 00:08:27,560 Speaker 3: Law enforcement then collected DNA from defendant via a buckle swab. 131 00:08:27,960 --> 00:08:31,600 Speaker 3: A traditional SDR DNA comparison was done between the SDR 132 00:08:31,680 --> 00:08:35,319 Speaker 3: profile found on the k bar knife sheath and defendant's DNA. 133 00:08:35,679 --> 00:08:41,240 Speaker 3: The comparison showed a statistical match Page six. Specifically, the 134 00:08:41,280 --> 00:08:45,319 Speaker 3: str profile is at least five point three seven octillion 135 00:08:45,400 --> 00:08:48,400 Speaker 3: times more likely to be seen if defendant is the 136 00:08:48,440 --> 00:08:52,040 Speaker 3: source than if an unrelated individual randomly selected from the 137 00:08:52,040 --> 00:08:55,920 Speaker 3: general population is the source. The genealogy conducted by the 138 00:08:56,040 --> 00:08:59,720 Speaker 3: FBI resulted in a lead that pointed law enforcement to defendant, 139 00:08:59,760 --> 00:09:02,280 Speaker 3: but it did not result in the creation of many 140 00:09:02,320 --> 00:09:05,640 Speaker 3: documents or records. Much of the information relied on by 141 00:09:05,679 --> 00:09:08,320 Speaker 3: the FBI was only viewed through the user portal in 142 00:09:08,360 --> 00:09:13,400 Speaker 3: the publicly available Genetic Genealogy Service and other investigative databases. 143 00:09:13,720 --> 00:09:17,160 Speaker 3: The FBI did not download or create copies of those records. 144 00:09:17,520 --> 00:09:20,439 Speaker 3: Once defendant was in custody, the FBI removed the SMP 145 00:09:20,600 --> 00:09:24,280 Speaker 3: profile from the Genetic Genealogy Service, pursuing the United States 146 00:09:24,320 --> 00:09:28,280 Speaker 3: Department of Justice Interim Policy for Forensic genetic genealogy, DNA 147 00:09:28,320 --> 00:09:32,680 Speaker 3: analysis and searching DOJ policy. This means the FBI no 148 00:09:32,720 --> 00:09:35,880 Speaker 3: longer has access to use much of the information it 149 00:09:36,000 --> 00:09:38,800 Speaker 3: used to create the family tree, and cannot view it 150 00:09:38,840 --> 00:09:43,800 Speaker 3: again without resubmitting the SMP profile to the Genetic Genealogy Service. 151 00:09:44,640 --> 00:09:47,880 Speaker 3: To the state's knowledge, the only records that reflect the 152 00:09:47,960 --> 00:09:51,160 Speaker 3: FBI's efforts to create the defendant's family tree is the 153 00:09:51,200 --> 00:09:54,360 Speaker 3: family tree itself, notes jotted down by FBI agents as 154 00:09:54,400 --> 00:09:57,800 Speaker 3: they constructed the family tree, and any records created to 155 00:09:57,920 --> 00:10:01,560 Speaker 3: document the removal of the SMP profile from the Genetic 156 00:10:01,600 --> 00:10:06,640 Speaker 3: Genealogy Service pursuing to DOJ policy. The state has not seen, 157 00:10:06,840 --> 00:10:10,120 Speaker 3: nor does the state possess these records or copies of 158 00:10:10,200 --> 00:10:14,720 Speaker 3: these records. Argument, the state seeks a protective order for 159 00:10:14,800 --> 00:10:20,640 Speaker 3: a narrow category of information, namely Page seven, information related 160 00:10:20,720 --> 00:10:24,640 Speaker 3: to the use of IgG in this case. Idaho Criminal 161 00:10:24,720 --> 00:10:29,800 Speaker 3: Rule sixteen governs discovery in criminal proceedings State versus Ish 162 00:10:30,520 --> 00:10:33,439 Speaker 3: one sixty six Idaho four nine two five one oh 163 00:10:33,480 --> 00:10:36,640 Speaker 3: twenty twenty. Rule sixteen is broad, but it is not 164 00:10:36,679 --> 00:10:39,560 Speaker 3: a free for all. The rule contemplates the exchange of 165 00:10:39,640 --> 00:10:43,040 Speaker 3: discrete categories of information between the state and the defense 166 00:10:43,559 --> 00:10:47,160 Speaker 3: as relevant here. The rule contemplates the state will provide 167 00:10:47,320 --> 00:10:51,520 Speaker 3: three discrete categories of information. Any material or information that 168 00:10:51,600 --> 00:10:55,160 Speaker 3: would tend to negate the guilt of the accused CICR 169 00:10:55,240 --> 00:10:59,120 Speaker 3: sixteen A. Any documents or objects that are material to the 170 00:10:59,160 --> 00:11:02,520 Speaker 3: preparation of the day defense, intended for use by the 171 00:11:02,559 --> 00:11:06,400 Speaker 3: prosecutor as evidence at trial, or were obtained from the 172 00:11:06,440 --> 00:11:09,800 Speaker 3: defendant or belonged to the defendant ICR sixteen B four. 173 00:11:10,320 --> 00:11:14,680 Speaker 3: And reports of scientific tests or experiments c ICR sixteen 174 00:11:15,240 --> 00:11:19,079 Speaker 3: B five. If a defendant believes he should receive information 175 00:11:19,160 --> 00:11:21,560 Speaker 3: that does not fall within one of the discrete Rule 176 00:11:21,600 --> 00:11:24,880 Speaker 3: sixteen categories, the rule allows the defendant to seek an 177 00:11:25,000 --> 00:11:28,000 Speaker 3: order from the court for information where the defendant can 178 00:11:28,040 --> 00:11:31,400 Speaker 3: show a substantial need for the information and preparation of 179 00:11:31,480 --> 00:11:36,280 Speaker 3: his case ce ICR sixteen B ten. Here, defendants served 180 00:11:36,280 --> 00:11:39,400 Speaker 3: on State a request for discovery that calls for the 181 00:11:39,440 --> 00:11:43,480 Speaker 3: IgG information, even though the IgG information falls outside of 182 00:11:43,520 --> 00:11:46,839 Speaker 3: Rule sixteen without first obtaining an order from this court. 183 00:11:47,320 --> 00:11:50,040 Speaker 3: The state now seeks, and the court should enter an 184 00:11:50,240 --> 00:11:54,120 Speaker 3: order protecting the information related to the use of IgG. 185 00:11:54,360 --> 00:11:58,040 Speaker 3: In this case, specifically, the state seeks to protect the 186 00:11:58,080 --> 00:12:02,960 Speaker 3: following information raw data related to the SMP profile and 187 00:12:03,120 --> 00:12:07,880 Speaker 3: the underlying laboratory documentation related to the development of the profile, 188 00:12:08,120 --> 00:12:12,360 Speaker 3: such as chain of custody forms, laboratory standard operating procedures, 189 00:12:12,640 --> 00:12:17,720 Speaker 3: analyst notes, et cetera. All information related to IgG efforts 190 00:12:17,720 --> 00:12:22,400 Speaker 3: in creating a family tree and identifying defendant's potential relatives, 191 00:12:22,440 --> 00:12:26,840 Speaker 3: including the identities of the genetic genealogy service services and 192 00:12:26,960 --> 00:12:32,640 Speaker 3: the personally identifying information Page eight of defendance relatives. The 193 00:12:32,720 --> 00:12:35,840 Speaker 3: state does not seek to protect and has or will 194 00:12:35,840 --> 00:12:40,400 Speaker 3: disclose the following information. A genotype kit report from the 195 00:12:40,440 --> 00:12:43,960 Speaker 3: private lab utilized by the Idaho State Police, which documents 196 00:12:44,080 --> 00:12:48,080 Speaker 3: that a DNA test was performed. Information related to the 197 00:12:48,160 --> 00:12:52,040 Speaker 3: str DNA analysis conducted using the DNA recovered from the 198 00:12:52,120 --> 00:12:55,360 Speaker 3: k R knife sheath and the DNA recovered from defendants 199 00:12:55,400 --> 00:13:00,600 Speaker 3: parents trash information related to the str DNA analysis conducted 200 00:13:00,720 --> 00:13:03,800 Speaker 3: using the DNA recovered from the k BAR knife sheath 201 00:13:03,880 --> 00:13:07,440 Speaker 3: and the DNA recovered from defendants via a bucle swab. 202 00:13:08,559 --> 00:13:12,240 Speaker 3: This court should grant an order protecting the IgG information 203 00:13:12,480 --> 00:13:16,000 Speaker 3: in this case because the IgG information does not fit 204 00:13:16,160 --> 00:13:19,760 Speaker 3: into any of the discrete categories listed in Rule sixteen, 205 00:13:19,920 --> 00:13:23,640 Speaker 3: and good cause exists to protect the information, including the 206 00:13:23,679 --> 00:13:28,320 Speaker 3: need to protect the privacy of defendant's relatives. A. Rule 207 00:13:28,400 --> 00:13:31,760 Speaker 3: sixteen A does not require the disclosure of the IgG 208 00:13:31,840 --> 00:13:36,240 Speaker 3: information because the IgG information is not exculpatory. Rule sixteen 209 00:13:36,280 --> 00:13:38,920 Speaker 3: A of the Idaho Criminal Rules does not require the 210 00:13:38,960 --> 00:13:43,319 Speaker 3: disclosure of the IgG information because the IgG information does 211 00:13:43,360 --> 00:13:46,680 Speaker 3: not tend to negate the guilt or reduce potential punishment 212 00:13:46,760 --> 00:13:50,040 Speaker 3: of defendant. The rule requires the state to disclose any 213 00:13:50,120 --> 00:13:53,560 Speaker 3: material or information in the prosecuting attorney's possession or control 214 00:13:53,960 --> 00:13:56,760 Speaker 3: that tends to negate the guilt of the accused as 215 00:13:56,800 --> 00:13:59,560 Speaker 3: to the offense charged, or that would tend to reduce 216 00:13:59,640 --> 00:14:03,880 Speaker 3: the punishment for the offense. ICR sixteen A as written, this 217 00:14:04,000 --> 00:14:07,080 Speaker 3: rule largely mirrors the federal Brady requirement that the state 218 00:14:07,160 --> 00:14:11,760 Speaker 3: produced to a criminal defendant all material exculpatory information, But 219 00:14:11,920 --> 00:14:15,880 Speaker 3: Rule sixteen A and Brady are limited to exculpatory information. 220 00:14:16,280 --> 00:14:19,640 Speaker 3: They do not require the prosecutor to make page nine 221 00:14:19,720 --> 00:14:22,440 Speaker 3: a complete and detailed accounting to the defense of all 222 00:14:22,480 --> 00:14:25,920 Speaker 3: police investigatory work on a case. While the question of 223 00:14:25,920 --> 00:14:30,080 Speaker 3: whether IgG information must be disclosed as exculpatory is one 224 00:14:30,120 --> 00:14:33,520 Speaker 3: of first impression in Idaho courts, outside of Idaho have 225 00:14:33,640 --> 00:14:37,600 Speaker 3: correctly decided that IgG information need not be disclosed as 226 00:14:37,680 --> 00:14:41,040 Speaker 3: exculpatory see e. G. In the matter of Michael Green, 227 00:14:41,280 --> 00:14:44,600 Speaker 3: ruling on motion to compel production of discovery attached here 228 00:14:44,640 --> 00:14:48,640 Speaker 3: too as exhibit A. In Green, law enforcement used DNA 229 00:14:48,800 --> 00:14:52,240 Speaker 3: recovered from the victim's nightgown to identify the defendant as 230 00:14:52,280 --> 00:14:56,359 Speaker 3: a possible suspect see Green up to. Then they surreptitiously 231 00:14:56,440 --> 00:14:59,640 Speaker 3: recovered items from the defendant's garbage that contained DNA and 232 00:14:59,680 --> 00:15:02,840 Speaker 3: found through str DNA testing that the DNA in the 233 00:15:02,840 --> 00:15:06,240 Speaker 3: defendant's garbage matched the DNA found on the victim's nightgown. 234 00:15:07,120 --> 00:15:10,400 Speaker 3: As saliva tests then confirmed that the defendant's DNA matched 235 00:15:10,400 --> 00:15:13,640 Speaker 3: the DNA on the victim's nightgown. The defendant moved to 236 00:15:13,680 --> 00:15:17,160 Speaker 3: compel the disclosure of the IgG information. After an in 237 00:15:17,320 --> 00:15:20,880 Speaker 3: camera hearing, the court denied the motion. The court explained, 238 00:15:21,280 --> 00:15:24,520 Speaker 3: the evidence that is material to the defendant's guilt or 239 00:15:24,560 --> 00:15:28,880 Speaker 3: innocence is the testing that followed the IgG investigation, which 240 00:15:28,960 --> 00:15:32,760 Speaker 3: directly compared a fresh swab of the defendant's DNA with 241 00:15:32,920 --> 00:15:36,280 Speaker 3: the DNA profile collected from the victim's nightgown. It is 242 00:15:36,360 --> 00:15:39,880 Speaker 3: only this evidence that the People intend to present at trial. 243 00:15:40,280 --> 00:15:43,440 Speaker 3: The People are not obligated to provide its preliminary search 244 00:15:43,600 --> 00:15:47,920 Speaker 3: of the genealogy databases for possible matches, which is investigatory 245 00:15:47,960 --> 00:15:51,080 Speaker 3: in nature and is not exculpatory or material to the 246 00:15:51,120 --> 00:15:54,880 Speaker 3: defendant's defense. As this case illustrates, the State is not 247 00:15:54,960 --> 00:15:59,000 Speaker 3: required to disclose the IgG information under REAL sixteen A 248 00:15:59,160 --> 00:16:02,240 Speaker 3: because the IGGA information the state seeks to protect is 249 00:16:02,280 --> 00:16:04,880 Speaker 3: not favorable to the defendant on the issue of guilt 250 00:16:04,960 --> 00:16:05,600 Speaker 3: or punishment. 251 00:16:18,560 --> 00:16:20,720 Speaker 1: Crime stories with Nancy Grace. 252 00:16:22,240 --> 00:16:25,520 Speaker 3: Page ten. The information provided to local law enforcement by 253 00:16:25,560 --> 00:16:28,440 Speaker 3: the FBI was nothing more than a tip, a lead 254 00:16:28,600 --> 00:16:31,120 Speaker 3: for local law enforcement to follow up on, should they 255 00:16:31,160 --> 00:16:35,120 Speaker 3: choose to. The genealogical tip did not prove or substantiate 256 00:16:35,240 --> 00:16:38,760 Speaker 3: defendant guilt. Rather, the tip allowed local law enforcement to 257 00:16:38,800 --> 00:16:42,840 Speaker 3: focus their investigation on defendant and obtain independent material evidence 258 00:16:42,840 --> 00:16:45,440 Speaker 3: of his guilt, all of which the state has disclosed 259 00:16:45,520 --> 00:16:49,960 Speaker 3: or will disclose. Specifically, with respect to DNA, an str 260 00:16:50,120 --> 00:16:53,840 Speaker 3: DNA analysis found defendant's DNA matched the DNA collected from 261 00:16:53,920 --> 00:16:56,840 Speaker 3: the k bar knife sheath to the extent that IgG 262 00:16:56,960 --> 00:16:59,760 Speaker 3: information has an irrelevance. The fact that it led law 263 00:16:59,800 --> 00:17:03,200 Speaker 3: enforcement to defendant means it is in culpatory rather than 264 00:17:03,280 --> 00:17:07,480 Speaker 3: exculpatory in nature. Thus, Rule sixteen A does not require 265 00:17:07,520 --> 00:17:10,800 Speaker 3: the disclosure of the IgG information because it is not 266 00:17:10,880 --> 00:17:14,119 Speaker 3: relevant to and certainly not favorable to the defendant on 267 00:17:14,320 --> 00:17:18,040 Speaker 3: the issue of guilt or punishment. B Rule sixteen B 268 00:17:18,280 --> 00:17:21,960 Speaker 3: four does not require the disclosure of the IgG information 269 00:17:22,080 --> 00:17:25,159 Speaker 3: because the IgG information does not satisfy any of the 270 00:17:25,160 --> 00:17:29,000 Speaker 3: required criteria. The nature of the IgG information is such 271 00:17:29,200 --> 00:17:32,880 Speaker 3: that its disclosure is not required under Rule sixteen B four. 272 00:17:33,440 --> 00:17:37,520 Speaker 3: That rule requires the disclosure of books, papers, documents, photographs, 273 00:17:37,560 --> 00:17:41,120 Speaker 3: tangible objects, and buildings or places only when they one 274 00:17:41,520 --> 00:17:44,840 Speaker 3: are material to the preparation of the defense, two are 275 00:17:44,880 --> 00:17:47,879 Speaker 3: intended for use by the prosecutor as evidence at trial, 276 00:17:48,000 --> 00:17:51,199 Speaker 3: or three were obtained from the defendant or belonged to 277 00:17:51,240 --> 00:17:55,480 Speaker 3: the defendant. ICR sixteen B four. The IgG information does 278 00:17:55,520 --> 00:17:59,959 Speaker 3: not satisfy any of these criteria. First, the IgG information 279 00:18:00,400 --> 00:18:03,320 Speaker 3: is not material to the preparation of the defense. Defendant 280 00:18:03,400 --> 00:18:06,320 Speaker 3: is charged with killing four people, not with being related 281 00:18:06,359 --> 00:18:09,760 Speaker 3: to a particular person. The mere fact that uploading the 282 00:18:09,800 --> 00:18:14,359 Speaker 3: completed SMP profile into a publicly available genetic genealogy page 283 00:18:14,359 --> 00:18:18,000 Speaker 3: eleven service led law enforcement relatives of defendant does not 284 00:18:18,040 --> 00:18:21,080 Speaker 3: affect the strength of the evidence against him. The strength 285 00:18:21,119 --> 00:18:23,840 Speaker 3: of the evidence against defendant in terms of DNA evidence 286 00:18:23,880 --> 00:18:27,560 Speaker 3: depends upon the confirmatory results from the str DNA analysis 287 00:18:27,600 --> 00:18:31,080 Speaker 3: between the defendant's DNA profile and the DNA recovered from 288 00:18:31,119 --> 00:18:34,359 Speaker 3: the k bar knife sheath. As explained further below, the 289 00:18:34,400 --> 00:18:38,160 Speaker 3: state intends to introduce the str DNA analysis at trial 290 00:18:38,240 --> 00:18:41,040 Speaker 3: and does not intend to enter any evidence pertaining to 291 00:18:41,160 --> 00:18:44,919 Speaker 3: the development of a SNP profile or the tree building 292 00:18:44,920 --> 00:18:49,080 Speaker 3: process for inculpatory purposes. The state has disclosed or will 293 00:18:49,080 --> 00:18:52,439 Speaker 3: disclose the information it has related to the str DNA 294 00:18:52,480 --> 00:18:57,240 Speaker 3: analysis conducted in connection with this case. The immateriality of 295 00:18:57,240 --> 00:19:00,000 Speaker 3: the IgG information to the preparation of the U S 296 00:19:00,080 --> 00:19:03,719 Speaker 3: defense is perhaps best understood by way of analogy. The 297 00:19:03,760 --> 00:19:06,959 Speaker 3: tip that came from the IgG process is no different 298 00:19:07,040 --> 00:19:10,160 Speaker 3: than other types of technology hits that put law enforcement 299 00:19:10,240 --> 00:19:13,560 Speaker 3: on the trail of a suspect. See United States versus Johnson, 300 00:19:13,680 --> 00:19:18,200 Speaker 3: for example. In Johnson, law enforcement recovered to suspect's DNA 301 00:19:18,280 --> 00:19:20,040 Speaker 3: from a ball cap left at the scene of a 302 00:19:20,080 --> 00:19:24,040 Speaker 3: bank robbery. One law enforcement ran the DNA profile through 303 00:19:24,080 --> 00:19:27,720 Speaker 3: cotis which resulted in multiple hits, including the defendant. A 304 00:19:27,760 --> 00:19:30,280 Speaker 3: scientist narrowed down the hits to the defendant, and law 305 00:19:30,359 --> 00:19:33,679 Speaker 3: enforcement confirmed it was the defendant's DNA after acquiring a 306 00:19:33,720 --> 00:19:37,040 Speaker 3: bugle swab from the defendant. The defendant moved to compel 307 00:19:37,119 --> 00:19:40,000 Speaker 3: the other codi's hits from the government, but the court 308 00:19:40,040 --> 00:19:44,320 Speaker 3: denied his motion. The court explained that the DNA evidence 309 00:19:44,440 --> 00:19:47,399 Speaker 3: material to the defense was the direct comparison between the 310 00:19:47,480 --> 00:19:50,200 Speaker 3: DNA on the hat and the DNA taken directly from 311 00:19:50,200 --> 00:19:53,679 Speaker 3: the defendant. The fact the defendant was first identified as 312 00:19:53,720 --> 00:19:57,440 Speaker 3: a possible suspect based on a database search simply does 313 00:19:57,480 --> 00:20:01,840 Speaker 3: not matter here. The IGGA information, like the initial code 314 00:20:01,840 --> 00:20:06,199 Speaker 3: OF's hits in Johnson page twelve, is not material to 315 00:20:06,280 --> 00:20:09,120 Speaker 3: the preparation of the defense because it only shows how 316 00:20:09,160 --> 00:20:13,719 Speaker 3: defendant was first identified as a possible suspect. Moreover, the 317 00:20:13,760 --> 00:20:17,399 Speaker 3: IgG information could not support an argument from defendant that 318 00:20:17,480 --> 00:20:20,600 Speaker 3: law enforcement violated his Fourth Amendment rights by entering the 319 00:20:20,680 --> 00:20:23,679 Speaker 3: DNA collected from the k bar knife sheath into a 320 00:20:23,720 --> 00:20:27,480 Speaker 3: genetic genealogy service. A defendant cannot prove a violation of 321 00:20:27,480 --> 00:20:30,280 Speaker 3: the Fourth Amendment without first showing he or she had 322 00:20:30,320 --> 00:20:34,480 Speaker 3: a reasonable expectation of privacy in the place searched. State 323 00:20:34,600 --> 00:20:38,359 Speaker 3: versus Man. The kbar knife sheath was abandoned at the scene, 324 00:20:38,480 --> 00:20:41,840 Speaker 3: as was the DNA inside it. Defendant cannot show that 325 00:20:42,000 --> 00:20:44,960 Speaker 3: he had a reasonable expectation of privacy in DNA left 326 00:20:45,000 --> 00:20:47,119 Speaker 3: at the scene of a quadruple homicide, or in the 327 00:20:47,160 --> 00:20:50,720 Speaker 3: genetic information of his relatives who voluntarily provided their own 328 00:20:50,800 --> 00:20:54,960 Speaker 3: DNA to a genetic genealogy service Cepiro versus State, two 329 00:20:55,000 --> 00:20:58,359 Speaker 3: thousand and eight, holding defendant did not have a reasonable 330 00:20:58,400 --> 00:21:01,400 Speaker 3: expectation of privacy in wary water bottle from which officers 331 00:21:01,440 --> 00:21:04,919 Speaker 3: recovered DNA, and observing that this Court has found no 332 00:21:05,000 --> 00:21:07,920 Speaker 3: case holding that a reasonable expectation of privacy should be 333 00:21:08,000 --> 00:21:11,000 Speaker 3: determined by a suspect's desire to keep his or her 334 00:21:11,040 --> 00:21:15,440 Speaker 3: genetic identity private. Additionally, the sheath and defendant's DNA left 335 00:21:15,440 --> 00:21:18,399 Speaker 3: on the sheath were seized pursuant to a valid search 336 00:21:18,440 --> 00:21:21,880 Speaker 3: warrant issued by a magistrate judge, which means the law 337 00:21:22,040 --> 00:21:25,800 Speaker 3: presumes that the search was reasonable. State versus Hutton. When 338 00:21:25,800 --> 00:21:28,560 Speaker 3: a search is conducted pursued into a warrant, the burden 339 00:21:28,600 --> 00:21:30,800 Speaker 3: of proof is on the defendant to show that the 340 00:21:30,840 --> 00:21:34,679 Speaker 3: search was invalid. Second, the state did not rely on 341 00:21:34,760 --> 00:21:38,439 Speaker 3: the IgG information to establish probable cause for defendant's arrest, 342 00:21:38,680 --> 00:21:41,480 Speaker 3: did not present the IgG information to the grand jury, 343 00:21:41,760 --> 00:21:46,000 Speaker 3: and has no plans page thirteen to present the IgG 344 00:21:46,119 --> 00:21:50,160 Speaker 3: information for which protective order is sought, as evidence a trial. Instead, 345 00:21:50,520 --> 00:21:53,200 Speaker 3: the state has relied on and will continue to rely 346 00:21:53,320 --> 00:21:57,040 Speaker 3: on the str DNA analysis comparing Defendant's DNA to the 347 00:21:57,160 --> 00:22:00,000 Speaker 3: DNA on the k bar knife sheath to establish defendant 348 00:22:00,000 --> 00:22:03,360 Speaker 3: and its guilt. Again, the state has disclosed or will 349 00:22:03,400 --> 00:22:07,040 Speaker 3: disclose information related to the str DNA analysis conducted in 350 00:22:07,080 --> 00:22:11,720 Speaker 3: connection with this case. Third, the documents and tangible objects 351 00:22:11,800 --> 00:22:15,240 Speaker 3: encompassed in the IgG information were not obtained from defendant, 352 00:22:15,320 --> 00:22:18,119 Speaker 3: and defendant has no property interest in them. To the 353 00:22:18,200 --> 00:22:20,760 Speaker 3: extent that DNA on the k bar knife sheet once 354 00:22:20,840 --> 00:22:23,879 Speaker 3: belonged to defendent, he abandoned that DNA when he left 355 00:22:23,880 --> 00:22:27,520 Speaker 3: it at the crime scene of a quadruple homicide. Defendant 356 00:22:27,640 --> 00:22:30,480 Speaker 3: has never had a property interest in the records that 357 00:22:30,520 --> 00:22:33,879 Speaker 3: reflect the SMP profile developed from the DNA on the 358 00:22:33,960 --> 00:22:36,800 Speaker 3: k bar knife sheheet, nor has he ever had a 359 00:22:36,800 --> 00:22:40,200 Speaker 3: property interest in the information gathered from the genetic genealogy 360 00:22:40,240 --> 00:22:44,320 Speaker 3: service using the SMP profile, such as the information provided 361 00:22:44,320 --> 00:22:48,000 Speaker 3: to the genetic genealogy service by defendant's relatives. In short, 362 00:22:48,600 --> 00:22:52,040 Speaker 3: none of the IgG information the state seeks to protect 363 00:22:52,359 --> 00:22:56,399 Speaker 3: came directly from defendant or currently belongs to defendant, and 364 00:22:56,440 --> 00:22:59,960 Speaker 3: thus Rule sixteen B four does not require its disclosure. 365 00:23:00,640 --> 00:23:04,439 Speaker 3: See Rule sixteen B five does not require the disclosure 366 00:23:04,600 --> 00:23:08,399 Speaker 3: of the IgG information because the IgG information is not 367 00:23:08,520 --> 00:23:12,040 Speaker 3: the result of a scientific test or experiment. Rule sixteen 368 00:23:12,160 --> 00:23:16,680 Speaker 3: also requires the disclosure of information related to scientific experiments, 369 00:23:16,720 --> 00:23:21,080 Speaker 3: but it only applies to limited information. Namely, Rule sixteen 370 00:23:21,160 --> 00:23:25,639 Speaker 3: requires the disclosure of results or reports of scientific tests 371 00:23:25,720 --> 00:23:30,920 Speaker 3: or experiments made in connection with the particular Page fourteen 372 00:23:31,320 --> 00:23:35,280 Speaker 3: case ICR sixteen B five. The rule does not require 373 00:23:35,280 --> 00:23:38,119 Speaker 3: the state to disclose what law enforcement does with the 374 00:23:38,160 --> 00:23:43,120 Speaker 3: results or reports. Moreover, a process, procedure or investigative technique 375 00:23:43,240 --> 00:23:45,960 Speaker 3: is not a scientific test or experiment merely because it 376 00:23:46,000 --> 00:23:49,520 Speaker 3: involves the comparison of information or objects or requires the 377 00:23:49,600 --> 00:23:53,359 Speaker 3: use of logic or reason c. State versus Matthews, nineteen 378 00:23:53,400 --> 00:23:56,440 Speaker 3: eighty five. Holding an officer's comparison of two keys did 379 00:23:56,440 --> 00:23:59,560 Speaker 3: not constitute a scientific test or experiment. Because it was 380 00:23:59,640 --> 00:24:03,360 Speaker 3: merely an observation of similarity between two keys. There were 381 00:24:03,400 --> 00:24:06,639 Speaker 3: two types of scientific tests conducted with respect to DNA 382 00:24:06,720 --> 00:24:10,320 Speaker 3: that fall within the purview of Rule sixteen B five. First, 383 00:24:10,800 --> 00:24:14,480 Speaker 3: law enforcement used str DNA analysis to compare the DNA 384 00:24:14,760 --> 00:24:17,280 Speaker 3: on the k bar knife sheath to defendant's father and 385 00:24:17,320 --> 00:24:21,120 Speaker 3: then two defendant. As required by Rule sixteen B five. 386 00:24:21,240 --> 00:24:24,439 Speaker 3: The State has provided the reports from those scientific tests. 387 00:24:24,760 --> 00:24:28,280 Speaker 3: The state also provided other information related to the str 388 00:24:28,440 --> 00:24:31,880 Speaker 3: DNA analysis because the state plans on using that information 389 00:24:32,080 --> 00:24:36,640 Speaker 3: at trial. Second, the private laboratory developed the SMP profile 390 00:24:36,720 --> 00:24:39,359 Speaker 3: from the DNA on the k bar knife sheath. As 391 00:24:39,400 --> 00:24:42,240 Speaker 3: required by Rule sixteen B five, The State will produce 392 00:24:42,280 --> 00:24:45,840 Speaker 3: the report that documents the DNA test. Rule sixteen B 393 00:24:45,960 --> 00:24:48,840 Speaker 3: five does not require the State to disclose how the 394 00:24:49,000 --> 00:24:53,240 Speaker 3: SMP profile was used, and the genealogy the FBI conducted 395 00:24:53,280 --> 00:24:56,760 Speaker 3: based on the DNA information does not constitute a scientific 396 00:24:56,800 --> 00:25:00,800 Speaker 3: test or experiment. The FBI submitted defendants sca BE profile 397 00:25:00,920 --> 00:25:04,160 Speaker 3: to one or more genetic genealogy services and were able 398 00:25:04,160 --> 00:25:08,080 Speaker 3: to view potential relatives and access on verified data added 399 00:25:08,119 --> 00:25:11,680 Speaker 3: by users in the genetic genealogy service. Starting with those 400 00:25:11,680 --> 00:25:15,840 Speaker 3: potential relatives. The FBI engaged in traditional genealogy to put 401 00:25:15,840 --> 00:25:19,000 Speaker 3: together a family tree that could lead them to the suspect. 402 00:25:19,320 --> 00:25:22,280 Speaker 3: Putting together the family tree required the FBI to review 403 00:25:22,320 --> 00:25:27,320 Speaker 3: sources Page fifteen, such as social media, publicly available databases, 404 00:25:27,440 --> 00:25:32,360 Speaker 3: subscription based databases, vital records like birth certificates, census records, 405 00:25:32,359 --> 00:25:36,080 Speaker 3: and historical newspapers. None of those actions can accurately be 406 00:25:36,200 --> 00:25:40,159 Speaker 3: characterized as a scientific test or experiment. The product of 407 00:25:40,200 --> 00:25:43,480 Speaker 3: the FBI's efforts was a family tree comprised of hundreds 408 00:25:43,480 --> 00:25:47,359 Speaker 3: of defendant's relatives. Put simply, the family tree created by 409 00:25:47,400 --> 00:25:50,920 Speaker 3: the FBI cannot accurately be described as the results or 410 00:25:50,960 --> 00:25:54,760 Speaker 3: reports of scientific tests or experiments, and thus falls outside 411 00:25:54,800 --> 00:25:59,159 Speaker 3: of Rule sixteen B five D. Good cause exist for 412 00:25:59,280 --> 00:26:03,320 Speaker 3: this Court to enter an order protecting the IgG information, 413 00:26:03,400 --> 00:26:06,600 Speaker 3: and if necessary, the Court should hold an in camera hearing. 414 00:26:07,200 --> 00:26:10,600 Speaker 3: The mere fact that the IgG information does not fall 415 00:26:10,720 --> 00:26:13,359 Speaker 3: within Rule sixteen is reason enough for this Court to 416 00:26:13,480 --> 00:26:17,399 Speaker 3: enter an order protecting the IgG information. But the State 417 00:26:17,440 --> 00:26:20,080 Speaker 3: is not seeking the protection of the IgG information as 418 00:26:20,119 --> 00:26:23,760 Speaker 3: an exercise and obstinates. Instead, the state seeks to protect 419 00:26:23,880 --> 00:26:27,560 Speaker 3: hundreds of innocent civilians from having their personal information, including 420 00:26:27,600 --> 00:26:31,080 Speaker 3: their names, birth dates, and familial connections to the defendant 421 00:26:31,080 --> 00:26:34,600 Speaker 3: in a high profile quadruple homicide from being disclosed. The 422 00:26:34,680 --> 00:26:38,560 Speaker 3: disclosure of the IgG information risks harm not only to 423 00:26:38,680 --> 00:26:42,919 Speaker 3: these indirect informants, but also to the genetic genealogy service 424 00:26:43,040 --> 00:26:46,919 Speaker 3: used by the FBI and the IgG investigative technique. This 425 00:26:47,040 --> 00:26:50,000 Speaker 3: court should follow the procedure laid out by Idaho's appellate 426 00:26:50,040 --> 00:26:53,800 Speaker 3: courts to determine whether the IgG information must be disclosed 427 00:26:54,600 --> 00:26:59,119 Speaker 3: Page sixteen one, Providing the IgG information would require the 428 00:26:59,119 --> 00:27:02,920 Speaker 3: disclosure of the identity of informants and prejudice the state. 429 00:27:03,640 --> 00:27:08,200 Speaker 3: The process used to collect IgG information required gathering information 430 00:27:08,359 --> 00:27:12,600 Speaker 3: from several informants, including the genetic genealogy service to which 431 00:27:12,680 --> 00:27:16,719 Speaker 3: the SMP profile was submitted, and indirectly from the relatives 432 00:27:16,720 --> 00:27:20,520 Speaker 3: of defendant who hit on the SMP profile. Pursuing too, 433 00:27:20,560 --> 00:27:24,560 Speaker 3: Rule sixteen, disclosure must not be required of an informant's 434 00:27:24,600 --> 00:27:27,439 Speaker 3: identity unless the informant is to be produced as a 435 00:27:27,440 --> 00:27:30,600 Speaker 3: witness at a hearing or trial. The state has no 436 00:27:30,680 --> 00:27:34,200 Speaker 3: intent of presenting the IgG information for which a protective 437 00:27:34,280 --> 00:27:37,440 Speaker 3: order is sought as evidence at trial, which means none 438 00:27:37,600 --> 00:27:41,280 Speaker 3: of the IgG informants will be produced as witnesses at trial. 439 00:27:41,760 --> 00:27:44,359 Speaker 3: The non disclosure of this information is consistent with the 440 00:27:44,359 --> 00:27:47,119 Speaker 3: state's privilege to refuse to disclose the identity of a 441 00:27:47,160 --> 00:27:51,639 Speaker 3: person who has furnished information relating to or assisting in 442 00:27:51,680 --> 00:27:55,000 Speaker 3: an investigation of a possible violation of a law to 443 00:27:55,119 --> 00:27:58,439 Speaker 3: a law enforcement officer. As a general matter, we protect 444 00:27:58,480 --> 00:28:01,480 Speaker 3: the identity of informants use US Supreme Court has explained 445 00:28:01,520 --> 00:28:04,280 Speaker 3: to encourage the flow of information concerning the commission of 446 00:28:04,320 --> 00:28:08,119 Speaker 3: crimes to law enforcement McGray versus Illinois, nineteen sixty seven, 447 00:28:08,520 --> 00:28:12,240 Speaker 3: such communications are discouraged if the informer's identity is disclosed. 448 00:28:12,600 --> 00:28:16,200 Speaker 3: The Court's words, written long before SNP profiles were used 449 00:28:16,240 --> 00:28:20,200 Speaker 3: for investigative purposes, apply with particular force to IgG information. 450 00:28:20,720 --> 00:28:24,400 Speaker 3: Both the genetic genealogy services to which law enforcement agencies 451 00:28:24,440 --> 00:28:27,880 Speaker 3: submit a suspect's SMP profile and the customers of those 452 00:28:27,920 --> 00:28:32,560 Speaker 3: genetic genealogy services who may unknowingly be related to a suspect, 453 00:28:32,800 --> 00:28:35,840 Speaker 3: would be less likely to make their information available if 454 00:28:35,920 --> 00:28:39,920 Speaker 3: courts start requiring the disclosure of their information in criminal cases, 455 00:28:40,240 --> 00:28:45,680 Speaker 3: especially in high profile criminal cases. See Green protecting IgG 456 00:28:45,760 --> 00:28:50,600 Speaker 3: information in page seventeen, Part because the Court retains wide 457 00:28:50,640 --> 00:28:54,000 Speaker 3: discretion to protect against the disclosure of information that might 458 00:28:54,120 --> 00:28:58,240 Speaker 3: unduly hamper the prosecution or violate some other legitimate government interests. 459 00:28:58,520 --> 00:29:02,120 Speaker 3: Number two, this Court should allow the process laid out 460 00:29:02,240 --> 00:29:05,840 Speaker 3: by Idaho' appellate courts to determine whether the IgG information 461 00:29:06,000 --> 00:29:09,960 Speaker 3: must be disclosed. Rule sixteen allows this Court to interaprotective 462 00:29:10,080 --> 00:29:13,800 Speaker 3: order for good cause Icer sixteen one. If the Court 463 00:29:14,000 --> 00:29:17,320 Speaker 3: finds it necessary to review evidence in camera to decide 464 00:29:17,360 --> 00:29:20,640 Speaker 3: whether disclosure is required. The rule itself allows the court 465 00:29:20,640 --> 00:29:24,320 Speaker 3: to do so. The rule expressly contemplates that, in deciding 466 00:29:24,400 --> 00:29:27,840 Speaker 3: whether to interaprotective order, the Court may permit a party 467 00:29:27,880 --> 00:29:30,479 Speaker 3: to show good cause by a written statement that the 468 00:29:30,480 --> 00:29:34,800 Speaker 3: Court will inspect ex parte ice our sixteen one. If 469 00:29:34,880 --> 00:29:38,320 Speaker 3: relief is granted, the court must preserve and seal the 470 00:29:38,480 --> 00:29:42,360 Speaker 3: entire text of the party's statement ICR sixteen one. Thus, 471 00:29:42,440 --> 00:29:46,440 Speaker 3: Rule sixteen standing alone provides this Court with the tools 472 00:29:46,440 --> 00:29:49,280 Speaker 3: it needs to review evidence in camera if the Court 473 00:29:49,320 --> 00:29:52,440 Speaker 3: decides it cannot interupt protective order. Based on this brief, 474 00:29:52,480 --> 00:29:56,920 Speaker 3: Alan Idahos appellate courts have further explained the process district 475 00:29:56,920 --> 00:30:00,560 Speaker 3: courts should use when faced with precisely this issue the 476 00:30:00,680 --> 00:30:03,800 Speaker 3: need to protect both the state's interest and non disclosure 477 00:30:03,840 --> 00:30:06,640 Speaker 3: of the identity of its informers and defendant's right to 478 00:30:06,720 --> 00:30:11,240 Speaker 3: receive e sculptory information see State versus Wilson, two thousand 479 00:30:11,280 --> 00:30:14,800 Speaker 3: and six. In Wilson, for example, the court explained that 480 00:30:14,920 --> 00:30:18,479 Speaker 3: this situation calls for a two step process. First, the 481 00:30:18,520 --> 00:30:21,760 Speaker 3: defendant must make a threshold showing that the informant may 482 00:30:21,840 --> 00:30:25,720 Speaker 3: be able to give relevant testimony. If the defendant successfully 483 00:30:25,720 --> 00:30:28,520 Speaker 3: makes that showing, an in camera proceeding then provides an 484 00:30:28,520 --> 00:30:31,680 Speaker 3: opportunity for the state to show that the informist knowledge 485 00:30:31,760 --> 00:30:35,240 Speaker 3: is not of such relevance that disclosures should be Page 486 00:30:35,280 --> 00:30:38,880 Speaker 3: eighteen ordered. See also State versus Farlow, two thousand and seven, 487 00:30:39,120 --> 00:30:41,960 Speaker 3: relying on Wilson to explain the same two step process. 488 00:30:42,400 --> 00:30:44,960 Speaker 3: Once the trial court has concluded the defendant meets the 489 00:30:45,000 --> 00:30:49,960 Speaker 3: initial threshold showing it must then conduct the in camera examination. Further, 490 00:30:50,280 --> 00:30:53,960 Speaker 3: the Idaho Supreme Court has confirmed that it is desirable 491 00:30:54,040 --> 00:30:57,200 Speaker 3: and proper to hold such an in camera hearing before 492 00:30:57,320 --> 00:31:03,280 Speaker 3: ordering or denying disclosure Idaho nineteen ninety eight. Even if 493 00:31:03,280 --> 00:31:07,360 Speaker 3: this Court finds that the IgG information falls within rule sixteen, 494 00:31:07,720 --> 00:31:11,040 Speaker 3: this court should follow the guideposts that Idaho's appellate courts 495 00:31:11,040 --> 00:31:14,760 Speaker 3: have planted for the protection of informants. Defendants should first 496 00:31:14,800 --> 00:31:18,200 Speaker 3: be required to establish that the IgG information is in 497 00:31:18,200 --> 00:31:21,040 Speaker 3: fact relevant to the charges against him. If he can 498 00:31:21,120 --> 00:31:23,640 Speaker 3: do so, this Court should allow the State to present 499 00:31:23,720 --> 00:31:26,280 Speaker 3: information at an in camera hearing for the Court to 500 00:31:26,320 --> 00:31:30,600 Speaker 3: determine whether the IgG information must be disclosed, explaining the 501 00:31:30,600 --> 00:31:33,840 Speaker 3: in camera presentation ordinarily may be made in the form 502 00:31:33,880 --> 00:31:37,120 Speaker 3: of affidavits by allowing the trial court to examine witnesses 503 00:31:37,160 --> 00:31:40,320 Speaker 3: as well. If the trial court deems it necessary conclusion 504 00:31:40,920 --> 00:31:43,640 Speaker 3: based on the above, the State respectfully praised for the 505 00:31:43,680 --> 00:31:46,840 Speaker 3: Court to enter in order protecting the IgG information from 506 00:31:46,880 --> 00:31:50,680 Speaker 3: disclosure as it falls outside the purview of Rule sixteen. 507 00:31:50,800 --> 00:31:54,160 Speaker 3: In the alternative, if the defense can establish the IgG 508 00:31:54,280 --> 00:31:57,440 Speaker 3: information is in fact relevant, the State asks this Court 509 00:31:57,480 --> 00:32:00,640 Speaker 3: to conduct the requisite in camera hearing from the State 510 00:32:00,720 --> 00:32:04,640 Speaker 3: to present information related to the IgG information, and then 511 00:32:04,960 --> 00:32:07,680 Speaker 3: enter a protective order under ICR sixteen to one that 512 00:32:07,920 --> 00:32:11,120 Speaker 3: the IgG information is not subject to discovery and need 513 00:32:11,160 --> 00:32:14,960 Speaker 3: not be disclosed by the State. Age nineteen respectfully submitted 514 00:32:15,000 --> 00:32:19,360 Speaker 3: this twenty third day of June twenty twenty three, William W. Thompson, 515 00:32:19,400 --> 00:32:23,120 Speaker 3: Junior Prosecuting Attorney, Jeff N. I, Special Assistant Attorney. 516 00:32:22,680 --> 00:32:40,520 Speaker 1: General Crime Stories with Nancy Grace in the. 517 00:32:40,520 --> 00:32:43,360 Speaker 3: District Court of the Second Judicial District of the State 518 00:32:43,400 --> 00:32:46,120 Speaker 3: of Idaho, in and for the County of Latah, State 519 00:32:46,160 --> 00:32:50,040 Speaker 3: of Idaho, Plaintiff versus Brian C. Coburger, Defendant, Case number 520 00:32:50,040 --> 00:32:52,280 Speaker 3: c R two nine DASH two two DASH two A 521 00:32:52,400 --> 00:32:57,000 Speaker 3: zero five objection to State's motion for protective order comes 522 00:32:57,000 --> 00:32:59,800 Speaker 3: now Bryan C. Coburger, by and through his attorney J. 523 00:33:00,120 --> 00:33:04,280 Speaker 3: Weston Logsdon, Chief Deputy Litigation and hereby objects to the 524 00:33:04,320 --> 00:33:08,640 Speaker 3: State's motion for protective order filed June sixteen, twenty twenty three, 525 00:33:08,960 --> 00:33:11,640 Speaker 3: on the grounds that the material the state seeks to 526 00:33:11,800 --> 00:33:15,240 Speaker 3: hide is discoverable and must be provided to mister Coburger. 527 00:33:16,040 --> 00:33:20,480 Speaker 3: Page two Factual background. On November thirteen, twenty twenty two, 528 00:33:20,840 --> 00:33:23,360 Speaker 3: law enforcement responding to a nine to one one call, 529 00:33:23,400 --> 00:33:28,160 Speaker 3: found Madison Mogen, Kayleigan Zavez, Xana Cernodle, and Ethan Chapin deceased. 530 00:33:28,640 --> 00:33:31,600 Speaker 3: Law enforcement later found a k bar knife sheath placed 531 00:33:31,680 --> 00:33:34,840 Speaker 3: next to Missmogan on her bed. The sheath was placed 532 00:33:34,880 --> 00:33:38,160 Speaker 3: button side down and partially under Mismogan and the comforter. 533 00:33:38,600 --> 00:33:41,720 Speaker 3: On November twenty, twenty twenty two, the Idaho State Police 534 00:33:41,800 --> 00:33:44,960 Speaker 3: Lab in Meridian, Idaho, located DNA on the button of 535 00:33:45,000 --> 00:33:48,680 Speaker 3: the sheath and performed STR analysis that led nowhere when 536 00:33:48,760 --> 00:33:52,040 Speaker 3: ran through CODIS combined DNA index system, other than to 537 00:33:52,200 --> 00:33:55,240 Speaker 3: show the provider was a male. By December seventeen, twenty 538 00:33:55,280 --> 00:33:58,360 Speaker 3: twenty two, lab analysts were aware of two additional males 539 00:33:58,440 --> 00:34:01,280 Speaker 3: DNA within the house where the deceased were located, and 540 00:34:01,360 --> 00:34:04,280 Speaker 3: another unknown male DNA on a glove found outside the 541 00:34:04,320 --> 00:34:07,760 Speaker 3: residence on November twenty, twenty twenty two. To this date, 542 00:34:08,040 --> 00:34:10,799 Speaker 3: the defense is unaware of what sort of testing, if any, 543 00:34:11,120 --> 00:34:15,640 Speaker 3: was conducted on these samples other than the STR DNA profiles. Further, 544 00:34:16,440 --> 00:34:19,640 Speaker 3: these three separate and distinct male DNA profiles were not 545 00:34:19,719 --> 00:34:22,800 Speaker 3: identified through CODIS, leading to the conclusion that the profiles 546 00:34:22,840 --> 00:34:26,120 Speaker 3: do not belong to mister Coburger. While this was ongoing, 547 00:34:26,360 --> 00:34:30,239 Speaker 3: police were investigating many various possible suspects, many of them 548 00:34:30,280 --> 00:34:34,359 Speaker 3: provided DNA. At least one had his DNA surreptitiously taken 549 00:34:34,400 --> 00:34:37,600 Speaker 3: from a discarded cigarette. Many also had their phones taken 550 00:34:37,600 --> 00:34:41,080 Speaker 3: and downloaded. One area of the investigation had to do 551 00:34:41,160 --> 00:34:43,759 Speaker 3: with the white sedan seen on a camera located at 552 00:34:44,000 --> 00:34:47,080 Speaker 3: one one one two King Road, first glimpsed by officers 553 00:34:47,080 --> 00:34:50,359 Speaker 3: on November eighteen, twenty twenty two. By November twenty five, 554 00:34:50,400 --> 00:34:53,080 Speaker 3: twenty twenty two, police believed the car to be a 555 00:34:53,160 --> 00:34:55,520 Speaker 3: white Alantra and ask law enforcement to be on the 556 00:34:55,520 --> 00:34:59,040 Speaker 3: lookout for one. Precisely how the police came to believe 557 00:34:59,120 --> 00:35:01,440 Speaker 3: the car was on a launch is still unknown. A 558 00:35:01,520 --> 00:35:04,480 Speaker 3: report from an analyst for the FBI dated March twenty one, 559 00:35:04,640 --> 00:35:07,759 Speaker 3: twenty twenty three, shows the analyst heavily relying on a 560 00:35:07,840 --> 00:35:10,160 Speaker 3: video of a car heading in the wrong direction and 561 00:35:10,320 --> 00:35:14,759 Speaker 3: at the wrong time on Ridge Road. Page three. The 562 00:35:14,800 --> 00:35:18,080 Speaker 3: state's latest filing admits that somewhere within all of this, 563 00:35:18,360 --> 00:35:23,360 Speaker 3: they engaged in investigative genetic genealogy using the DNA taken 564 00:35:23,360 --> 00:35:25,960 Speaker 3: from the button on the sheath, and now claims that 565 00:35:26,040 --> 00:35:28,640 Speaker 3: it was due to the use of this technique that 566 00:35:28,719 --> 00:35:32,560 Speaker 3: it tipped local law enforcement to investigate mister Coburger. It 567 00:35:32,600 --> 00:35:35,720 Speaker 3: remains unclear what the police first relied on in focusing 568 00:35:35,760 --> 00:35:39,680 Speaker 3: their investigation on mister Coburger. No matter what came first 569 00:35:39,800 --> 00:35:43,360 Speaker 3: the car or the genetic genealogy. The investigation has provided 570 00:35:43,400 --> 00:35:46,680 Speaker 3: precious little. There is no connection between mister Coburger and 571 00:35:46,680 --> 00:35:49,359 Speaker 3: the victims. There is no explanation for the total lack 572 00:35:49,400 --> 00:35:53,240 Speaker 3: of DNA evidence from the victims in mister Coberger's apartment, office, home, 573 00:35:53,520 --> 00:35:57,319 Speaker 3: or vehicle. In essence, through the lack of disclosure and 574 00:35:57,360 --> 00:36:00,800 Speaker 3: their motion to protect the genetic genealogy investigation, the state 575 00:36:01,000 --> 00:36:05,760 Speaker 3: is hiding its entire case argument. The state apparently thinks 576 00:36:05,960 --> 00:36:08,279 Speaker 3: that they need not explain how they came to think 577 00:36:08,320 --> 00:36:11,719 Speaker 3: that it was mister Coberger's DNA on the sheath. Presumably, 578 00:36:11,880 --> 00:36:14,680 Speaker 3: the defense is expected to accept at face value that 579 00:36:14,719 --> 00:36:17,719 Speaker 3: the sheefs had touched DNA, just waiting for testing by 580 00:36:17,760 --> 00:36:21,680 Speaker 3: all the FBI's myriad resources. Additionally, the defense is to 581 00:36:21,920 --> 00:36:25,240 Speaker 3: guess whether the state focused its investigation on mister Coburger 582 00:36:25,480 --> 00:36:29,279 Speaker 3: via a bizarrely complex DNA tree experiment or through its 583 00:36:29,280 --> 00:36:33,680 Speaker 3: faulty identification of the vehicle involved in this case. Perhaps unsurprisingly, 584 00:36:33,760 --> 00:36:37,000 Speaker 3: mister Coburger does not accept that his defense does not 585 00:36:37,160 --> 00:36:40,960 Speaker 3: need this information. It rather obviously falls within the ambit 586 00:36:41,080 --> 00:36:44,279 Speaker 3: of Rule sixteen B four and five. A fact the 587 00:36:44,400 --> 00:36:47,560 Speaker 3: state's briefing makes clear and its kitchen sink approach to 588 00:36:47,680 --> 00:36:51,320 Speaker 3: their briefing. The State begins their argument claiming Rule sixteen 589 00:36:51,560 --> 00:36:55,160 Speaker 3: has no interest in IgG testing, and then ends their 590 00:36:55,280 --> 00:36:59,320 Speaker 3: argument claiming page four that somehow people will stop sharing 591 00:36:59,360 --> 00:37:02,520 Speaker 3: their genetics if they were to realize the government is watching. 592 00:37:03,040 --> 00:37:07,480 Speaker 3: Both arguments must fail to begin with the State apparently 593 00:37:07,560 --> 00:37:10,719 Speaker 3: only once to prevent mister Coburger from seeing how the 594 00:37:10,760 --> 00:37:13,960 Speaker 3: IgG profile was created and how many other people the 595 00:37:14,040 --> 00:37:18,440 Speaker 3: FBI chose to ignore during their investigation. In essence, the 596 00:37:18,480 --> 00:37:22,200 Speaker 3: State argues that if the later str testing is accurate, 597 00:37:22,480 --> 00:37:25,000 Speaker 3: then there is no reason to concern ourselves with how 598 00:37:25,000 --> 00:37:28,879 Speaker 3: the State came to investigate mister Coburger, states brief at nine. 599 00:37:29,280 --> 00:37:33,000 Speaker 3: What the state's argument asks this court and mister Coberger 600 00:37:33,040 --> 00:37:36,120 Speaker 3: to assume is that the DNA on the sheath was 601 00:37:36,200 --> 00:37:38,919 Speaker 3: placed there by mister Coburger and not someone else, during 602 00:37:38,960 --> 00:37:42,480 Speaker 3: an investigation that spans hundreds of members of law enforcement 603 00:37:42,480 --> 00:37:45,680 Speaker 3: and apparently at least one lab the State refuses to name. 604 00:37:46,160 --> 00:37:49,480 Speaker 3: Perhaps most puzzling is the state's argument that while Rule 605 00:37:49,560 --> 00:37:52,680 Speaker 3: sixteen B five requires them to turn over the results 606 00:37:52,760 --> 00:37:56,520 Speaker 3: or reports from scientific investigations, it does not require the 607 00:37:56,520 --> 00:37:59,760 Speaker 3: state to disclose what law enforcement does with the results 608 00:37:59,800 --> 00:38:03,719 Speaker 3: or reports, states brief at fourteen. First of all, that 609 00:38:04,000 --> 00:38:06,839 Speaker 3: sounds like an admission that the information as to how 610 00:38:06,880 --> 00:38:11,040 Speaker 3: the IgG was carried out should be disclosed. Second, what 611 00:38:11,120 --> 00:38:14,239 Speaker 3: law enforcement does with results or reports is covered by 612 00:38:14,320 --> 00:38:18,600 Speaker 3: Rule sixteen B six statements of prosecution witnesses and eight 613 00:38:18,840 --> 00:38:22,960 Speaker 3: police reports. Frankly, the fact that members of the FBI 614 00:38:23,040 --> 00:38:25,960 Speaker 3: are so concerned about permitting mister Coburger to know what 615 00:38:26,120 --> 00:38:29,320 Speaker 3: they were up to with what was supposedly his DNA 616 00:38:29,719 --> 00:38:32,120 Speaker 3: does not give one the impression that there is nothing 617 00:38:32,160 --> 00:38:35,160 Speaker 3: to see here, as the State seems to imply. Finally, 618 00:38:35,280 --> 00:38:38,480 Speaker 3: the States claim that ICR sixteen G two applies to 619 00:38:38,520 --> 00:38:42,319 Speaker 3: this matter is quite bizarre. Presumably the independent company the 620 00:38:42,360 --> 00:38:45,160 Speaker 3: government relied on was paid for its work and would 621 00:38:45,239 --> 00:38:48,319 Speaker 3: stand by it in court. The State provides no real 622 00:38:48,440 --> 00:38:51,200 Speaker 3: argument as to why the company needs to be protected. 623 00:38:51,520 --> 00:38:54,279 Speaker 3: Mister Coburger is left to suspect they wish to keep 624 00:38:54,320 --> 00:38:58,600 Speaker 3: their methods from being Page five questioned to the extent 625 00:38:58,680 --> 00:39:01,319 Speaker 3: that there is some concern about intellectual property that can 626 00:39:01,360 --> 00:39:04,200 Speaker 3: be addressed via a protective order that permits mister Coberger 627 00:39:04,239 --> 00:39:07,799 Speaker 3: and his defense team to review their work. Second, the 628 00:39:07,840 --> 00:39:11,000 Speaker 3: state appears to argue that everyone living on Earth that 629 00:39:11,080 --> 00:39:14,919 Speaker 3: provides genetic information is a unaware that their DNA could 630 00:39:14,960 --> 00:39:17,840 Speaker 3: be used by a government somewhere for something, and b 631 00:39:18,480 --> 00:39:21,279 Speaker 3: is an informant within the meaning of the term in 632 00:39:21,320 --> 00:39:26,040 Speaker 3: the rule. The state citations to cases involving actual informants 633 00:39:26,080 --> 00:39:29,680 Speaker 3: hardly help it make this incredible leap. No court has 634 00:39:29,719 --> 00:39:33,160 Speaker 3: ever found the existence of a DNA informant. It would 635 00:39:33,160 --> 00:39:36,600 Speaker 3: appear that the state is acknowledging that the companies are 636 00:39:36,600 --> 00:39:40,160 Speaker 3: providing personal information to the state, and that those companies 637 00:39:40,200 --> 00:39:42,759 Speaker 3: and the government would suffer if the public were to 638 00:39:42,840 --> 00:39:46,960 Speaker 3: realize it. The only two databases that allow access are 639 00:39:47,080 --> 00:39:50,760 Speaker 3: ones that already inform their users, and those users can 640 00:39:50,760 --> 00:39:54,200 Speaker 3: opt in to allow law enforcement searches. The statement by 641 00:39:54,200 --> 00:39:57,360 Speaker 3: the government implies that the database is searched may be 642 00:39:57,560 --> 00:40:01,400 Speaker 3: ones that law enforcement is specifically barred from, which explains 643 00:40:01,440 --> 00:40:04,759 Speaker 3: why they do not want to disclose their methods. If 644 00:40:04,800 --> 00:40:07,120 Speaker 3: the fact that the government is looking at the genetic 645 00:40:07,200 --> 00:40:10,040 Speaker 3: information that people are sharing was it all an issue, 646 00:40:10,280 --> 00:40:13,560 Speaker 3: then the state's very public acknowledgment of such investigations was 647 00:40:13,680 --> 00:40:16,799 Speaker 3: clearly a big mistake. In any case, it is hard 648 00:40:16,800 --> 00:40:19,800 Speaker 3: to understand why mister Coburger should be the one to suffer, 649 00:40:19,880 --> 00:40:23,120 Speaker 3: because these companies on our government choose to either mislead 650 00:40:23,239 --> 00:40:26,480 Speaker 3: or not educate the public. According to the Pew Research 651 00:40:26,520 --> 00:40:29,960 Speaker 3: Center in February twenty twenty, forty eight percent of respondents 652 00:40:30,000 --> 00:40:32,440 Speaker 3: thought it was acceptable to give their data to law 653 00:40:32,560 --> 00:40:36,279 Speaker 3: enforcement to solve crime. Thirty three percent said no, and 654 00:40:36,360 --> 00:40:40,320 Speaker 3: eighteen percent were unsure. James Halpin police use of forensic 655 00:40:40,400 --> 00:40:44,600 Speaker 3: genealogy tech raises privacy concerns the citizen's Voice March twenty eighth, 656 00:40:44,680 --> 00:40:49,400 Speaker 3: twenty twenty two. However, sixty percent thought their genetic information 657 00:40:50,400 --> 00:40:55,279 Speaker 3: page six could not be shared with other companies. There 658 00:40:55,360 --> 00:40:58,480 Speaker 3: is no federal law about the sharing of genetic information, 659 00:40:58,640 --> 00:41:02,560 Speaker 3: but multiple states have begun regulating police use. Mister Coburger 660 00:41:02,600 --> 00:41:05,879 Speaker 3: has reasons to be extremely suspicious of the IgG used 661 00:41:05,920 --> 00:41:08,919 Speaker 3: in this case. Rather than seeing it as some sort 662 00:41:08,920 --> 00:41:12,080 Speaker 3: of complex tree building that led to him, it appears 663 00:41:12,200 --> 00:41:14,960 Speaker 3: far more like a lineup where the government was already 664 00:41:15,000 --> 00:41:17,719 Speaker 3: aware of who they wanted to target. Rather than have 665 00:41:17,800 --> 00:41:20,879 Speaker 3: the investigation done by someone blind to that fact, the 666 00:41:20,960 --> 00:41:23,840 Speaker 3: FBI chose to do it themselves. This is akin to 667 00:41:23,880 --> 00:41:26,400 Speaker 3: the police pulling in mister Coburger and five of his 668 00:41:26,560 --> 00:41:28,960 Speaker 3: cousins off the street and then pointing at him. The 669 00:41:29,040 --> 00:41:31,640 Speaker 3: only authority the state has in its favor that is 670 00:41:31,680 --> 00:41:34,560 Speaker 3: on point is a trial court order from a Californian 671 00:41:34,640 --> 00:41:38,120 Speaker 3: case that settled before it could lead anywhere. That decision 672 00:41:38,160 --> 00:41:41,200 Speaker 3: relied on its people. Versus Johnson two thousand and six, 673 00:41:41,840 --> 00:41:44,480 Speaker 3: the court in Johnson was not deciding whether a defendant 674 00:41:44,520 --> 00:41:46,759 Speaker 3: had a right to know how he was identified, only 675 00:41:46,800 --> 00:41:50,200 Speaker 3: that his identification could come in a trial without a 676 00:41:50,239 --> 00:41:53,440 Speaker 3: mini trial about it. A better case on the issue 677 00:41:53,480 --> 00:41:57,920 Speaker 3: is State versus Artiga. In this case, an appellate court 678 00:41:58,000 --> 00:42:01,080 Speaker 3: heard similar arguments about the need for software used for 679 00:42:01,120 --> 00:42:04,560 Speaker 3: facial recognition to be discovered to the defendant, though they 680 00:42:04,560 --> 00:42:08,360 Speaker 3: would not be admitted at trial. The court, considering the matter, found, 681 00:42:08,800 --> 00:42:12,040 Speaker 3: we are keenly aware the cases we have discussed involved 682 00:42:12,080 --> 00:42:16,680 Speaker 3: instances concerning fry hearings and potential expert testimony, and that 683 00:42:16,840 --> 00:42:20,280 Speaker 3: here we are dealing instead with eyewitnesses who have already 684 00:42:20,280 --> 00:42:25,040 Speaker 3: identified the perpetrator, and the identification found admissible underweight. However, 685 00:42:25,480 --> 00:42:28,480 Speaker 3: the facts of this case convince us defendant will be 686 00:42:28,520 --> 00:42:32,000 Speaker 3: deprived of due process if he does not have access 687 00:42:32,040 --> 00:42:34,960 Speaker 3: to the raw materials integral to the building of an 688 00:42:34,960 --> 00:42:39,360 Speaker 3: effective defense. Page seven. The evidence sought here is directly 689 00:42:39,400 --> 00:42:42,840 Speaker 3: tied to the defense's ability to test the reliability of 690 00:42:42,920 --> 00:42:46,719 Speaker 3: the FRT. As such, it is vital to impeach the 691 00:42:46,760 --> 00:42:52,319 Speaker 3: witness's identification challenge the state's investigation, create reasonable doubt, and 692 00:42:52,520 --> 00:42:58,720 Speaker 3: demonstrate third party guilt. The frt's reliability has obvious implications 693 00:42:58,760 --> 00:43:02,960 Speaker 3: for the accuracy of the identification process, because an array 694 00:43:03,120 --> 00:43:07,360 Speaker 3: constructed around a mistaken potential match would leave the witness 695 00:43:07,400 --> 00:43:11,160 Speaker 3: with no actual perpetrator to choose. The reliability of the 696 00:43:11,200 --> 00:43:15,400 Speaker 3: technology bears direct relevance to the quality and thoroughness of 697 00:43:15,440 --> 00:43:19,680 Speaker 3: the broader criminal investigation and whether the potential matches the 698 00:43:19,760 --> 00:43:24,240 Speaker 3: software returned yielded any other viable alternative suspects To establish 699 00:43:24,360 --> 00:43:30,279 Speaker 3: third party guilt. Defendants request for the identity design, specifications, 700 00:43:30,280 --> 00:43:34,520 Speaker 3: and operation of the program or programs used for analysis, 701 00:43:34,560 --> 00:43:38,880 Speaker 3: and the database or databases used for comparison are relevant 702 00:43:39,200 --> 00:43:43,799 Speaker 3: to frt's reliability. At trial, the state will likely have 703 00:43:43,880 --> 00:43:49,360 Speaker 3: the investigating officer explain the police investigation, including the process 704 00:43:49,440 --> 00:43:53,160 Speaker 3: of retrieving the still photo from the surveillance cameras ultimately 705 00:43:53,280 --> 00:43:56,360 Speaker 3: used to generate an image of defendant. Although we do 706 00:43:56,440 --> 00:44:00,399 Speaker 3: not speculate regarding the exact nature of this testimony whether 707 00:44:00,520 --> 00:44:03,440 Speaker 3: defendant will seek to impeach it, the fact that the 708 00:44:03,480 --> 00:44:07,560 Speaker 3: state does not bear the burden of adducing testimony regarding 709 00:44:07,560 --> 00:44:10,719 Speaker 3: the composition of the photo array does not bar the 710 00:44:10,760 --> 00:44:14,360 Speaker 3: defense access to the discovery saw it. Mister Coberger finds 711 00:44:14,440 --> 00:44:17,840 Speaker 3: himself in a similar position as mister Artiga. A massive 712 00:44:17,880 --> 00:44:21,360 Speaker 3: investigation came to focus on him and him alone. The 713 00:44:21,400 --> 00:44:24,480 Speaker 3: state appears to be trying to hide its original domino, 714 00:44:24,680 --> 00:44:28,560 Speaker 3: such that he cannot discover why. Mister Coberger has a 715 00:44:28,640 --> 00:44:32,240 Speaker 3: right to discover and question the investigation that led to him. 716 00:44:32,560 --> 00:44:35,600 Speaker 3: This Court should so find dated this twenty second day 717 00:44:35,600 --> 00:44:39,120 Speaker 3: of June twenty twenty three by Jay Logsdon, Chief Deputy 718 00:44:39,160 --> 00:44:40,800 Speaker 3: Litigation Assigned Attorney. 719 00:44:41,520 --> 00:44:46,960 Speaker 2: All of this legal maneuvering, motions being filed, decisions being made, 720 00:44:48,000 --> 00:44:51,280 Speaker 2: the case on the docket for trial as the victim's 721 00:44:51,640 --> 00:44:58,359 Speaker 2: families wait for their day in court. Nancy Gray's crime 722 00:44:58,400 --> 00:45:02,799 Speaker 2: Story signing off, goodbye friend, you