Private company that provided DNA testing program is not part of the “prosecution team” and cannot be compelled to disclose information regarding the program which is solely in the company’s possession. Defendant was charged with conspiracy to commit murder. The evidence in the case included swabs which contained DNA from multiple contributors. The DNA evidence was analyzed using a program created by the Environmental Research Lab (ESR). In discovery, the defense sought information from the prosecution about ESR’s program, including its source code, software, manual, and internal testing. The trial court compelled the discovery. The prosecution sought a writ of mandate. Held: Petition granted. Penal Code section 1054 compels discovery from the prosecution but does not regulate discovery from third parties, which must be sought via a subpoena duces tecum. Though section 1054.1 requires the prosecution to disclose exculpatory evidence, this only applies to information in the possession of the prosecutor or known to be in the possession of investigating agencies. The federal constitution also imposes a duty of disclosure on the prosecution under Brady v. Maryland (1963) 373 U.S. 83, but only to those who are “part of the prosecution team.” ESR provided no assistance specific to defendant’s case except to the extent the prosecution used its software program. Therefore, it was not part of the prosecution team, and the trial court erred by ordering the prosecution to provide evidence solely in the possession of ESR. In addition, the defendant did not show the software in the prosecution’s possession was exculpatory to require disclosure under Brady. Finally, as to the manual in the prosecution’s possession, ESR must have an opportunity to be heard regarding trade secret protection before the trial court could order disclosure.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D073943.PDF