Good find--so if the defense has requested additional testing the prosecution has facilitated that.
Bolded by me--The evidence from the crime scene, the DNA, and the results of tests on the evidence from the crime scene, the genetic profiles and the match to BK, have nothing to do with this fight over discovery. The defense has always had that.
IGG is not evidence. It's an investigative technique that uses the evidence to lead you to a suspect. The DNA test that matches (or doesn't) that suspect to the DNA from the crime scene is the evidence.
My main point was that it should be clear that it was the FBI holding the IGG, not the local prosecution. I think it's important to be clear on that because every time this is brought up, it paints the local prosecution as being shady. They didn't turn it over because they didn't have it. The FBI was resisting turning the information over because they said it didn't fall under discovery.
But to your points--this is really all going to be up to the court. Idaho Criminal Rule says that the supervision of discovery is a discretionary power of the trial court. Judge Judge addresses this in his Order Addressing IGG DNA and Order For
In Camera Review in October 2023.
Disclosure of information gathered from an IGG investigation is an issue of first impression in Idaho. It hasn't been litigated there yet. Judge Judge looked to other courts when he was writing this order.
"The issue of disclosure of information gathered from an IGG investigation is an issue of first impression in Idaho...while there is no precedent in Idaho, what limited cases are available from other jurisdictions are worth discussing."
The judge cited
In the Matter of: Michael Green, where Green argued he was entitled to genetic genealogy information, saying it was necessary to ascertain the details of what, when, where and how the investigation into him occurred, the identity of the other possible matches so they could be interviewed and a possible Fourth Amendment violation.
The trial court held:
"the prosecution was not obligated to discover to Green the requested match Detail Reports, long-form candidate Match Reports, family tree information, lists of people identified, or any other information from its Forensic Genetic Genealogy investigation."
"The evidence that is material to Green's guilt or innocence is the testing that followed the FGG investigation, which directly compared a fresh swab of Green's DNA with the DNA profile collected from the victim's nightgown. It is only this evidence that the People intend to present at trial. The People are not obligated to provide its preliminary search of the genealogy databases for possible matches, which is investigatory in nature and is not exculpatory or material to Green's defense...A mere possibility that the information might help the defense does not establish that this information is material."
So there is case law that supports the contention that the IGG work product is not subject to discovery because it's not exculpatory or material to the preparation of the defense. There is case law that says what's material and discoverable is the DNA test for the match following the IGG, but not the IGG.
(Judge Judge cites two additional cases that don't directly address IGG and discovery--his point is that, based on the rulings, the defendants likely had some access to the IGG information. But no case law regarding IGG and discovery are contained there.)
Ultimately, Judge Judge agreed to meet
in camera with the prosecution to review the materials and decide what was material to BK's defense and should be released to him under discovery. I believe this happened and the materials deemed to fall under discovery have been turned over. The FBI was always going to fight turning over what they consider an investigative tool.
Also in that document--the prosecution turned over the SNP from the very beginning. That was all that was needed for the defense to do their own IGG. What they were really looking for was the date the FBI gave the name to the prosecution.
JMO
