Before Judges GAULKIN, D'ANNUNZIO and WALLACE.
The issue is whether the State may compel discovery of reports prepared by the defendant's expert witness for other clients in unrelated cases. The issue arises on the appeal of the expert witness, pursuant to leave granted, from an order denying his motion to quash a subpoena. We now reverse that order.
Defendant's first trial for capital murder and other related crimes, held in March 1993, ended in a mistrial due to the jury's deadlock during the guilt phase. Jury selection for defendant's retrial was interrupted when we granted leave to appeal.
Defendant John DeMarco is charged with the murder of his girlfriend, Karen DeStefanis. The victim's nude body was found by a hunter in a remote area of Hillsborough Township in December, 1990. She had been stabbed at least twenty times.
During the autopsy, the medical examiner took specimens from the victim's body for microscopic analysis. Among those specimens were fluids obtained by swabbing the oral, vaginal and anal orifices. One of the oral swabs revealed the presence of semen. These results were reported to the Somerset County Prosecutor's Office, which subsequently forwarded the swabs and slides to the FBI for DNA analysis. See United States v. Jakobetz, 955 F.2d 786 (2d Cir.), cert. denied, ––– U.S. 104, 113 S.Ct. 104, 121 L.Ed.2d 63 (1992), and State v. Cauthron, 846 P.2d 502 (Wash.1993), for explanations of DNA typing for purposes of identification.
The FBI utilized what is known as the RFLP DNA test procedure. This procedure examines the cells which are contained in the evidence samples and requires a relatively large amount of specimen to obtain a useful result. On May 23, 1991, the FBI issued a report concluding that the semen specimen could not be analyzed because the DNA was "degraded and/or insufficient." The exhibits were returned to the Somerset County Prosecutor's office and made available to defense counsel by order of the trial court.
Defense counsel retained the services of Dr. Edward Blake of Forensic Science Associates, Richmond, California, to conduct DNA testing on the sperm-bearing swab. Dr. Blake used a technique known as Polymerase Chain Reaction (PCR). The PCR technique involves extraction of DNA material from the evidence, and amplification of the DNA material to obtain a sample sufficient for typing purposes. See State v. Williams, 252 N.J.Super. 369, 599 A.2d 960 (Law Div.1991), for a description of the PCR technique and Dr. Blake's role in that case in behalf of the State.
Dr. Blake identified semen on the oral swab, extracted a minute amount of DNA material from the swab, amplified the extracted DNA material and examined it. As a result of his analysis, Dr. Blake concluded in his report that defendant "can not be the source of the sperm recovered from the DeStefanis oral swab." Dr. Blake's report was received by defense counsel in September 1992.
Dr. Blake testified in defendant's behalf at the first trial in March 1993. On June 18, 1993, Assistant Prosecutor James Wronko, who had tried the case for the State, wrote to Dr. Blake requesting that he provide the State with "copies of your reports for all criminal cases in which you have conducted PCR DQ Alpha testing on behalf of either the State or the defense." By letter dated June 21, 1993, Dr. Blake responded that he would not honor this demand as it was an "inappropriate invasion of my professional practice."
On June 25, 1993, Wronko, without notice to Dr. Blake, issued a subpoena duces tecum to Roche Molecular Systems, Inc. (Roche), requesting that it turn over case file reports prepared by Dr. Blake and in Roche's possession. The State sought the reports "specifically to locate additional cases wherein Blake's test results indicated the existence of unexplained contamination in either evidentiary or reference samples."
The reports were apparently in the possession of Dr. Henry Erlich, the current director of Roche's Department of Human Genetics. Dr. Erlich and his colleagues developed the DNA technology utilized by Blake in this case. See State v. Williams, supra, 252 N.J.Super. at 381, 599 A.2d 960. Between 1987 and 1991, Blake "scientifically collaborated" with Erlich and other members of his laboratory with respect to the PCR HLA DQ Alpha technique and its relationship to forensic casework, and Blake would often send Erlich copies of his casework reports. The collaborations resulted in several articles on the topic. Dr. Erlich and his colleagues also acted as consultants to Dr. Blake on several occasions. Roche responded to the subpoena by turning over 234 case files to the State on September 13, 1993. *fn1
On September 29, 1993, Blake moved to quash the subpoena, arguing that the case reports were protected from disclosure as work product and also under the attorney-client privilege. The trial court rejected these arguments, stating:
even if we accept as true that an attorney-client privilege, or some right of confidentiality exists, when these case reports were prepared by Dr. Blake and held by him, that right of confidentiality ceased when Dr. Blake sent those reports to Dr. Erlich, to Roche, or to other scientists who were not part of his staff and office.
When he delivered those case reports to another scientist, or another office outside of his own office, in my view, they enter the public domain, and they ...