State v. Tybear Miles

majority opinion

SYLLABUS

This syllabus is not part of the Court’s opinion. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Court and may not summarize all portions of the opinion.

State v. Tybear Miles (A-41-24) (090275)

Argued March 30, 2025 -- Decided June 24, 2026

JUSTICE FASCIALE, writing for a unanimous Court.

In this interlocutory appeal, the Court considers the scope of discovery to which defendant Tybear Miles is entitled after the State utilized Facial Recognition Technology (FRT) in its criminal investigation.

A grand jury charged defendant with first-degree murder and weapons offenses in connection with a fatal shooting in Jersey City. As part of their investigation, police met with a confidential informant who viewed surveillance footage from a nearby location, identified two individuals by their nicknames, and provided Instagram usernames for each. An FRT search of the Instagram profile photograph for one of the individuals revealed defendant and multiple other possible matches. Police later interviewed defendant’s sister, his ex-girlfriend, and two other people, all of whom identified defendant from videos and still images from other nearby surveillance footage. However, several men were seen in that footage, no footage captured the shooting, and no witness identified defendant as the shooter.

Defense counsel filed a motion to compel discovery related to FRT evidence in accordance with State v. Arteaga, 476 N.J. 36 (App. Div. 2023), seeking the same thirteen items granted on the facts of that case, including proprietary information about the FRT such as the source code. The trial judge applied Arteaga and granted defendant’s motion. The State provided limited discovery and filed a motion for leave to appeal the ruling. The Appellate Division denied the motion. The Court granted leave to appeal. 260 N.J. 197 (2025).

HELD: The Court disagrees with a mechanical application of Arteaga to all cases involving FRT; a defendant’s entitlement varies depending on the specifics of the case. Here, the State must produce: (1) discovery identifying the FRT tools and materials the State used in its investigation; and (2) discovery related to how the State utilized those FRT tools and materials to prosecute defendant. At this stage, however, the trial judge erred in compelling the State to produce proprietary FRTrelated information, such as the FRT source code. Determining the discoverability of any proprietary FRT information must await a more developed record.

1. The right to a fair trial is guaranteed under the Federal and State Constitutions, and due process compels the State to disclose evidence favorable to an accused. To further ensure fair and just trials, New Jersey has embraced a broad, open-file approach to discovery in criminal cases. See R. 3:13-3(b). The touchstone for discoverability is whether the requested material is “relevant.” (pp. 17-19)

2. Discovery of proprietary technological information involves unique challenges. In State v. Pickett, the Appellate Division addressed whether a defendant was entitled to trade secrets of DNA analysis software “for the sole purpose of challenging the reliability of the science underlying novel DNA analysis software and expert testimony.” 466 N.J. Super. 270, 276-77 (App. Div. 2021). The court concluded that a defendant is entitled to discovery of proprietary information --possibly including a software’s source code -- “to the extent necessary to ensure a fair trial.” Id. at 304-06. The Pickett court set forth a burden-shifting framework for such discovery whereby, if the State shows good cause to shield information from discovery, the burden shifts to the defendant to demonstrate “a particularized need” for the evidence. Id. at 304-07. In Arteaga, the Appellate Division considered the scope of discovery to which a defendant was entitled where detectives relied on FRT to investigate a robbery. 476 N.J. Super. at 41-43. Upon review of the defendant’s specific discovery needs, testimony from the defendant’s proposed FRT expert, and the overall record at issue, the Arteaga court held that the defendant had “demonstrated a particularized need” under Pickett for the thirteen items he requested because the list of items sought was adequately tethered in breadth and scope to the defendant’s specific defense needs. Id. at 63. (pp. 20-24)

3. Here, the trial judge did not abuse his discretion in ordering the State to turn over (1) information identifying the non-proprietary FRT tools and materials utilized, which is relevant to the reliability of FRT in this case; and (2) information on how the State used those tools and materials, which is potentially relevant for, at a minimum, impeaching the interviewees’ identification, challenging the investigation, and demonstrating potential third-party guilt. As to proprietary information, such as the FRT source code, the Court reverses in part without prejudice. On the present record, the Court cannot resolve whether defendant has “articulated a particularized need for the proprietary source code and [any] related [proprietary] information.” Pickett, 466 N.J. Super. at 324. The record has not been sufficiently developed to address reliability questions related to the particular FRT used, and defendant does not yet know whether he needs proprietary information. (pp. 24-32)

AFFIRMED in part and REVERSED in part.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRE-LOUIS,

WAINER APTER, NORIEGA, and HOFFMAN join in JUSTICE FASCIALE’s

opinion.

SUPREME COURT OF NEW JERSEY

A-41 September Term 2024

090275

State of New Jersey,

Plaintiff-Appellant,

Tybear Miles,

Defendant-Respondent.

On appeal from the Superior Court,

Appellate Division.

Argued Decided

March 30, 2026 June 24, 2026

Colleen Kristan Signorelli, Special Deputy Attorney

General/Acting Assistant Prosecutor, argued the cause for

appellant (Wayne Mello, Acting Hudson County

Prosecutor, attorney; Colleen Kristan Signorelli, on the

briefs).

Joel S. Silberman argued the cause for respondent (Law

Offices of Joel S. Silberman, attorneys; Joel S.

Silberman, on the briefs).

John J. Santoliquido, Deputy Attorney General, argued

the cause for amicus curiae Attorney General of New

Jersey (Jennifer Davenport, Attorney General, attorney;

Michael L. Zuckerman, Deputy Solicitor General, and

John J. Santoliquido, of counsel and on the brief).

Tamar Y. Lerer, Deputy Public Defender, argued the

cause for amicus curiae Public Defender of New Jersey

(Jennifer N. Sellitti, Public Defender, attorney; Tamar Y.

Lerer, of counsel and on the brief).

Dillon Reisman argued the cause for amici curiae

American Civil Liberties Union, American Civil

Liberties Union of New Jersey, Innocence Project, and

Collaborative Research Center for Resilience (American

Civil Liberties Union of New Jersey Foundation,

American Civil Liberties Union Foundation, and

Innocence Project, Inc., attorneys; Dillon Reisman, Ezra

D. Rosenberg, Jeanne LoCicero, Nathan Freed Wessler a

member of the New York and Massachusetts bars,

admitted pro hac vice, and Maithreyi Nandagopalan a

member of the New Mexico bar, admitted pro hac vice,

on the brief).

Christopher J. Frascella submitted a brief on behalf of

amici curiae Electronic Privacy Information Center,

Electronic Frontier Foundation, and National Association

of Criminal Defense Lawyers (Electronic Privacy

Information Center, and McCarter & English, attorneys;

Christopher J. Frascella, Daniella Gordon, Abigail

Kunkler a member of the District of Columbia bar,

admitted pro hac vice, Hannah Zhao (Electronic Frontier

Foundation) a member of the New York bar, admitted pro

hac vice, and Michael Price and Shreya Tewari (National

Association of Criminal Defense Lawyers) members of

the New York bar, admitted pro hac vice, on the brief).

Thomas E. Redburn, Jr., submitted a brief on behalf of

amicus curiae Dr. Gary L. Wells, Ph.D. (Lowenstein

Sandler, attorneys; Thomas E. Redburn, Jr., and Maya

Ginsburg, on the brief).

Pashman Stein Walder Hayden, attorneys for amicus

curiae Association of Criminal Defense Lawyers of New

Jersey, submitted a letter relying on the brief of amicus

curiae Public Defender of New Jersey.

Lawrence S. Lustberg submitted a brief on behalf of

amicus curiae Dr. Michael C. King, Ph.D. (Gibbons,

attorneys; Lawrence S. Lustberg and Ruth O’Herron, on

the brief).

Vito A. Gagliardi, Jr., submitted a brief on behalf of

amicus curiae New Jersey State Association of Chiefs of

Police (Porzio, Bromberg & Newman, attorneys; Vito A.

Gagliardi, Jr., of counsel, and David L. Disler and

Thomas J. Reilly, on the brief).

JUSTICE FASCIALE delivered the opinion of the Court.

In this interlocutory appeal, we consider the scope of discovery to which

defendant is entitled after the State utilized Facial Recognition Technology

(FRT) in its criminal investigation. Relying on State v. Arteaga, 476 N.J.

Super. 36 (App. Div. 2023), in which the appellate court directed the trial

judge on remand to order the State to produce thirteen items of FRT discovery,

the trial judge in this matter compelled the State to produce those exact same

thirteen items of FRT-related discovery. The Appellate Division denied leave

to appeal, concluding that “Arteaga applies and the [trial] judge did not abuse

his discretion in compelling the State to produce the relevant FRT-related

discovery.” We granted leave to appeal and, for the reasons that follow, we

now affirm in part and reverse in part.

“As technology proliferates, so does its use in criminal prosecutions.”

State v. Pickett, 466 N.J. Super. 270, 323 (App. Div. 2021). Yet a defendant’s

discovery related to the investigative use of such technology remains a casespecific inquiry, fundamentally premised upon whether the information sought

is relevant to a defendant’s case and whether its production is necessary to

ensure a fair trial. We thus disagree with a mechanical application of Arteaga

to all cases involving FRT. Such discovery cannot be reduced to a rigid

thirteen-item checklist; a defendant’s entitlement varies depending on the

specifics of the case.

Accordingly, under the facts of this case, we hold that the State must

produce: (1) discovery identifying the FRT tools and materials the State used

in its investigation; and (2) discovery related to how the State utilized those

FRT tools and materials to prosecute defendant. The first category --identifying the FRT tools -- is relevant to more fully developing a record

regarding the reliability of FRT in this case. The second category --information on how the State utilized those tools -- could be relevant to

impeaching the interviewees’ identification, challenging the State’s

investigation, and demonstrating potential third-party guilt. The trial judge did

not abuse his discretion by ordering the State to turn over discovery that fits

into those two categories because, without either category of relevant

information, defendant would be deprived of his right to present a meaningful

defense. Although we reject a rigid checklist for FRT discovery, we note that

such basic information will, in most cases, constitute the minimum necessary

to safeguard a defendant’s right to a fair trial.

At this stage, however, the trial judge erred in compelling the State to

produce proprietary FRT-related information, such as the FRT source code.

Determining the discoverability of any proprietary FRT information must

await a more developed record. Indeed, defendant acknowledged that he does

not yet know whether such information is necessary for his defense.

We therefore affirm as modified in part, reverse without prejudice in

part, and remand for further proceedings consistent with this opinion.

A grand jury indicted defendant and charged him with first-degree

murder, second-degree possession of a weapon for an unlawful purpose, and

second-degree unlawful possession of a weapon without a permit. Thereafter,

relying on Arteaga, defendant filed his motion to compel discovery related to

the FRT the State utilized in its investigation. We derive the facts from the

limited record presented to the trial judge.

On June 5, 2021, at 10:03 p.m., police responded to a report of shots

fired on Stegman Parkway in Jersey City. Upon arrival, the police found the

victim, Ahmad McPherson, lying on the sidewalk in front of 239 Stegman

Parkway. They performed chest compressions and CPR until the victim was

transported to Jersey City Medical Center, where he was pronounced dead at

10:40 p.m. Following an autopsy, the medical examiner determined that the

cause of death was multiple gunshot wounds and classified the death as a

homicide.

At the scene of the shooting, a concerned citizen handed an officer two

handwritten notes. One note stated, “The guy who did the sho[o]ting last name

is Collins he has dr[e]ads.” The other note simply stated, “Maude.” 1

Investigators then recovered from the victim two resealable plastic bags

containing suspected marijuana and $180. They also recovered blue Nike

shorts and a white T-shirt at the murder scene, which belonged to the victim.

The next day, Officer Teddy Roque from the Jersey City Police

Department (JCPD) met with a confidential informant (CI). The CI did not

witness the shooting. The officer showed the CI video obtained from Jersey

The trial judge indicated that the name “Maude” is “an apparent reference to the [victim].”

City Closed Circuit Television (CCTV), 2 which recorded activity on Dwight

Street and Martin Luther King (MLK) Drive, approximately two blocks from

the shooting, at 9:59 p.m. According to Officer Roque’s police report, the

footage shows a male wearing “gray sweatpants, a white T-shirt, [with] long

black dreads and white sneakers” walk over to and speak with a second male

wearing “black shorts, a white T-shirt, . . . [with] long dreads, [and] a fanny

pack strung across his chest.” The report reflects that the two males then

walked northbound on MLK Drive with other men.

After reviewing the CCTV video, the CI identified the two males by

their street names. The CI called the first male “Fat Daddy” and referred to

the second male as “Parkz.” The CI also provided the Instagram usernames of

the two men, along with the name, address, and car make of Fat Daddy’s exgirlfriend.

Following the CI’s identification and information, the police retrieved

Fat Daddy’s photograph from his Instagram profile and saved it as a JPEG

file. 3 Officer Roque then imported the photograph into the NJ/NY High

Intensity Drug Trafficking Areas (HIDTA) Facial Recognition Module, and,

The CCTV video was not provided on appeal.

The record is silent as to whether the police obtained Parkz’s photograph from Parkz’s Instagram username that the CI had provided.

according to the report, “a search was conducted for a match which revealed a

positive match for [defendant].” The search also revealed multiple other

possible “matches.” Officer Roque’s report states, without providing a

specific timeline, that “[l]ater on, the CI was shown a mug shot photograph of

[defendant]” and positively identified the depicted individual as “Fat Daddy.”

Police also obtained three other videos from nearby locations from the

day of the shooting: surveillance video footage from Kaelyn Grocery store,

located at 156 MLK Drive, taken approximately ninety minutes before the

shooting; footage from 158 MLK Drive, taken approximately seven minutes

before the shooting; and Ring doorbell video footage from 235 Stegman Street,

taken at the time of the shooting. The video from Kaelyn Grocery depicts a

group of Black males, including the victim, who was wearing blue Nike shorts

and a white T-shirt, and a male with the same dreads and clothing as the man

whom the CI had identified from the CCTV footage as “Fat Daddy.” The

footage from 158 MLK Drive depicts the same group of males and shows the

victim and the male with dreads walk away from the group. The Ring doorbell

video captured the sound of two gunshots but does not visually depict the

shooting. At the time of the gunshots, six members of the group of Black

males are depicted but neither the male with dreads nor the victim are visible

in the frame. Immediately following the gunshots, that group of males is seen

running east, followed by the departure of the male with dreads, who walked

west.

Two days after the shooting, and after law enforcement used FRT as part

of their investigation, the police interviewed four individuals: a resident who

lived near the shooting; defendant’s sister; defendant’s ex-girlfriend; and an

individual familiar with the neighborhood (the local man). None of those

interviewees witnessed the shooting. In their police interviews, the resident,

sister, ex-girlfriend, and local man were each shown surveillance videos and

photographs which were different than the ones shown to the CI. The

interviewees shared the following information:

The resident explained that he saw the group of men depicted in the

Kaelyn Grocery store, 158 MLK Drive, and doorbell videos walking down the

street. The resident further stated that he heard an argument and gunshots but

could not identify who fired the shots.

Officer Ricardo Rodrigues showed defendant’s sister three still

photographs from the Kaelyn Grocery store video. She identified her brother

as one of the people in those photographs.

Officer Rodrigues showed defendant’s ex-girlfriend “screenshot images”

also recovered from the Kaelyn Grocery store video. The ex-girlfriend

identified one person in those images as defendant. She told Officer

Rodrigues that she had dated defendant for about six months and that her

relationship with defendant had ended two weeks before the murder. She also

told the officer that she did not know whether defendant went by “Fat Daddy”

or any other nickname.

The police showed the local man the Kaelyn Grocery store video

footage. From that footage, the local man identified the individual with dreads

as “Fats/Fat Daddy.” He went on to identify several of the other men depicted

in the video, also only by nickname.

Altogether, what we can discern from this limited record is that no

witness identified defendant as the shooter; there were several people near the

victim while he was shot twice; and all of the police interviewees were shown

video footage and still photographs from approximately ninety minutes before

the murder and seven minutes before the murder.

Shortly after arraignment, defense counsel filed a motion to compel

discovery “related to Facial Recognition evidence in accord with [Arteaga].”

Defense counsel’s supporting brief listed -- verbatim -- the same thirteen FRTrelated items that the Arteaga defendant had requested, a request that the

Appellate Division had granted on the facts of that case. 4

See Section III.B.3 below for the full list of requested Arteaga items.

Applying Arteaga, the trial judge granted defendant’s motion and

compelled the State to produce those thirteen items. On reconsideration, the

same judge rejected the State’s contention that Arteaga was inapplicable and

added that he had “already factored the differences between Arteaga and this

case.”

The State’s discovery response was limited. First, the State provided

defendant with four pages of what appear to be two different FRT searches that

were run as part of the investigation. One search returned a list of ten possible

“matches” to the probe image of defendant, with defendant ranked as the

eighth “match” on the list of ten. The other search also returned a list of ten

possible “matches,” with five different images of defendant ranked in the first

five positions.

Second, the State provided a letter from an individual associated with the

New Jersey State Police (NJSP) who reported the following: “I have searched

our system[,] and [the NJSP has] no record of a request related to this case. . . .

[The NJSP has] no record of that defendant’s name or the case number you

provided.” 5

Given the NJSP representative’s report, as the OPD stated, “it is very unclear where the search results [here] have come from.”

In addition to providing those two discovery items, the State filed a

motion for leave to appeal the trial judge’s discovery ruling. The Appellate

Division denied the State’s motion, noting that trial judges are afforded

substantial deference on discovery matters and that Arteaga applies to

defendant’s request. Accordingly, the appellate court concluded that the trial

judge did not abuse his discretion by entering the discovery order.

We granted the State’s motion for leave to appeal. 260 N.J. 197 (2025).

We also granted motions to appear as amici curiae filed by the Office of the

Public Defender (OPD); the American Civil Liberties Union of New Jersey

(ACLU); the Innocence Project; the Collaborative Research Center for

Resilience (CRCR); the New Jersey State Association of Chiefs of Police

(NJSACOP); the Attorney General; the Electronic Privacy Information Center

(EPIC); the Electronic Frontier Foundation (EFF); the National Association of

Criminal Defense Lawyers (NACDL); the Association of Criminal Defense

Lawyers of New Jersey (ACDL); Dr. Michael C. King, Ph.D.; and Dr. Gary L.

Wells, Ph.D.

II.

The State argues that, although it utilized FRT during its investigation,

the FRT is irrelevant in prosecuting defendant. It asserts that the information

provided by the CI alone would have led officers to investigate defendant. The

State explains the FRT was merely an “investigatory tool,” which it will not

use at trial. Requiring production of all categories of discovery granted in

Arteaga would be “problematic,” according to the State, because such an

application of Arteaga would “not account for how quickly technology evolves

and develops.” If it is required to produce FRT-related discovery and is unable

to produce “all or some of the requested FRT-related discovery materials,”

then the State contends that any potential remedy was not fully developed in

the trial court.

Defendant argues that a meaningful defense requires FRT discovery. He

asserts that he has the right to challenge the State’s FRT investigation and

identification process, even if the State elects not to rely on FRT at trial.

Defendant relies on Rule 3:13-3(b)(1), Brady v. Maryland, 373 U.S. 83 (1963),

and the inherent ability of a court to order discovery when justice requires.

Specifically, defendant disputes whether the investigation would have

led to him regardless of the State’s utilization of FRT. He emphasizes that no

one identified him as the shooter, and law enforcement never showed the CI,

his sister, his ex-girlfriend, or the local man the surveillance or still

photographs of the actual shooting. He further argues that, independent of the

information provided by the interviewees, FRT discovery is relevant to the

possibility of third-party guilt because the FRT test produced other “matches”

for the FRT probe image. Additionally, defendant argues that there are

significant issues as to the way in which the State utilized FRT. He contends

that FRT discovery is relevant to “the sloppiness of the police investigation,

fueled by tunnel vision.”

The Attorney General asserts that discovery into FRT’s “inner

workings” is not warranted because the State utilized FRT as an investigatory

tool rather than as a “source of trial evidence.” The Attorney General

concedes that “basic information” about “how the FRT was used” (i.e., “what

image was shown to [FRT], what matches were found, and the general context

of [FRT’s] use”) is prudent to disclose when FRT is used in an investigation

because it is “more likely to be probative in a particular defendant’s case [and]

much less burdensome to produce.” But the Attorney General contends that

more extensive discovery should not be granted without a defendant first

establishing a “strong need.”

The NJSACOP similarly contends that this Court should establish a

“framework that permits FRT software and source code [to be discoverable]

only where a criminal defendant demonstrates a particularized need for it.” It

argues that discovery of “FRT software, source code, and other such

proprietary information should be rare.” In addition to its position as to the

discoverability of proprietary FRT information, the NJSACOP asserts that “a

defendant would remain free to obtain discovery and to adduce testimony at

trial regarding how the FRT was used.”

The OPD, ACDL, ACLU, and other remaining amici all argue that

without any FRT discovery, there can be no fair trial. The OPD, EPIC, EFF,

and NACDL provide important and helpful information about how most FRT

systems work. The OPD’s amicus brief contains a detailed analysis, which

asserts that FRT systems “vary in their reliability, many produce unacceptably

high levels of false positives, and all of them perform significantly worse

under real-world conditions.” The OPD contends that it is “critical for the

defense to know exactly which tools were employed and how they were used.”

All those amici assert that FRT is inherently subjective and error-prone, has

led to misidentifications, has been unreliable, and that defendant is entitled to

FRT discovery. They contend that the State here utilized FRT to target

defendant as a suspect, which they argue is relevant to the quality and

thoroughness of the criminal investigation, as well as to potential third-party

guilt.

Dr. King, an expert in biometrics, states the term FRT “does not refer to

a single system or software,” but to diverse systems, “each developed and

trained with [their] own standards . . . yielding results that vary widely in their

reliability.” Dr. King notes that “many of the controls and configuration

settings” that support the accuracy of FRT results are “relaxed or removed . . .

for investigative . . . uses.” For example, he explains that law enforcement

may set a low threshold for inclusion in a list of potential “matches” to ensure

the list is fully populated. He states FRT systems “do not find a match” but

rather find “similarities” given that “no two photos even of the same face are

identical.” Dr. King explains that the similarities are “not tied to a statistical

degree of confidence in the usual sense” but “depend on the algorithm unique

to each . . . system.”

Dr. Wells, a psychologist who studies eyewitness identification,

contends that the FRT searches here are problematic. For example, if a photo

of defendant “was not in the HIDTA database because he had never been

arrested in New York or New Jersey, then the FRT was guaranteed to return a

false negative.” He explains that the FRT system also “may have been

insufficiently trained or contained biases or bugs.” Those potential issues have

a bearing on the State’s investigation because the “FRT produced . . . a

possible match” between Fat Daddy’s Instagram photo and defendant’s

mugshot, thus implying that “[d]efendant might be Fat Daddy.”

III.

We review discovery motions under an abuse of discretion standard and

therefore “accord substantial deference to a trial court’s issuance of a

discovery order.” State v. Hernandez, 225 N.J. 451, 461 (2016). “A trial court

can abuse its discretion ‘by failing to consider all relevant factors,’” and we

“will set aside or modify such decisions if they do not comport with the

applicable law or do not give sufficient regard to pertinent considerations.”

State v. Ramirez, 252 N.J. 277, 298 (2022) (quoting State v. S.N., 231 N.J.

497, 500 (2018)).

The right to a fair trial is fundamental and guaranteed under the Fifth

and Sixth Amendments to the United States Constitution, as well as the New

Jersey Constitution. U.S. Const. amend. V, VI; N.J. Const. art. I, ¶ 10. Our

Constitutions thus ensure that criminal defendants are afforded “a meaningful

opportunity to present a complete defense.” State v. Garron, 177 N.J. 147, 168

(2003) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)). Those

“fundamental legal rights are the hallmark of our judicial process, a process

which technology” continues to impact. Pickett, 466 N.J. Super. at 302.

Among a defendant’s fundamental rights is the right to due process. Id.

at 279. As the Supreme Court of the United States held in Brady v. Maryland,

due process compels the State to disclose “evidence favorable to an accused

. . . where the evidence is material either to guilt or to punishment, irrespective

of the good faith or bad faith of the prosecution.” 373 U.S. at 87. The

suppression of such evidence thus “violates due process.” Ibid.; State v.

Brown, 236 N.J. 497, 518 (2019). The Brady rule applies to “[i]mpeachment

evidence . . . as well as exculpatory evidence.” United States v. Bagley, 473

U.S. 667, 676 (1985); Brown, 236 N.J. at 518.

To further “ensure fair and just trials,” New Jersey has embraced a

broad, open-file approach to discovery in criminal cases. Hernandez, 225 N.J.

at 453; State v. Scoles, 214 N.J. 236, 252 (2013) (“[A] defendant has a right to

automatic and broad discovery of the evidence the State has gathered in

support of its charges.”). Indeed, discovery has long been found a “sound tool

for truth.” State v. Cook, 43 N.J. 560, 564 (1965). Pretrial discovery in

particular “encourage[s] the presentation of all relevant material to the jury as

an aid in the establishment of truth through the judicial process.” State in Int.

of W.C., 85 N.J. 218, 221 (1981).

Rule 3:13-3(b) codifies and delineates the scope of such discovery. It

mandates that, “[e]xcept for good cause shown, the [State’s] discovery for

each defendant . . . shall include exculpatory information or material.” R.

3:13-3(b)(1). The touchstone for discoverability is whether the requested

material is “relevant.” See ibid.; Ramirez, 252 N.J. at 296. “Relevant

material” is that which has “a tendency in reason to prove or disprove [a] fact

of consequence to the determination of the action.” State v. Desir, 245 N.J.

179, 193 (2021) (alteration in original) (quoting State v. Richardson, 452 N.J.

Super. 124, 132 (App. Div. 2017)).

Although Rule 3:13-3 establishes the baseline for discovery, it must be

noted that discovery is not unlimited. We have held that discovery is not so

broad as to indulge, for example, a defendant’s “unfocused, haphazard search

for evidence.” Hernandez, 225 N.J. at 463 (quoting State v. D.R.H., 127 N.J.

249, 256 (1992)). Nevertheless, trial judges retain the authority to order

discovery even “beyond that mandated by our court rules when doing so will

further the truth-seeking function or ensure the fairness of a trial.” Ibid.

(quoting State in Int. of A.B., 219 N.J. 542, 560 (2014)); see also W.C., 85

N.J. at 221 (“[W]e have no doubt that a Court has the inherent power to order

discovery when justice so requires.”).

Discovery of proprietary technological information involves unique

challenges compared to standard discovery requests. In State v. Pickett, the

Appellate Division addressed, as an issue of first impression, whether a

defendant was entitled to trade secrets of DNA analysis software used to

identify and charge him “for the sole purpose of challenging at a Frye hearing

the reliability of the science underlying novel DNA analysis software and

expert testimony.” 466 N.J. Super. at 276-77, 281 (referring to Frye v. United

States, 293 F. 1013 (D.C. Cir. 1923)). The appellate court concluded that a

defendant is entitled to discovery of proprietary information -- which, in the

case of digital tools and materials, might include a “software’s source code and

supporting software development and related documentation” -- “to the extent

necessary to ensure a fair trial.” Id. at 304-06.

The Pickett court set forth a burden-shifting framework for such

discovery. Initially, “[the] party seeking to shield information from discovery”

on grounds that the information is “confidential or proprietary” “bears the

burden of showing good cause” to do so. Id. at 304; see also R. 4:10-3(g)

(providing that a protective order may be sought to restrict the scope of such

disclosure).

If the State makes the requisite good cause showing, the burden then

“shift[s] to [the] defendant to demonstrate a sufficient need for the evidence.”

Pickett, 466 N.J. Super. at 304-05. The court provided four fact-intensive

considerations to guide trial judges in analyzing whether a defendant has

established a “particularized need”:

(1) whether there is a rational basis for ordering a party

to attempt to produce the information sought, including

the extent to which proffered expert testimony supports

the claim for disclosure; (2) the specificity of the

information sought; (3) the available means of

safeguarding the company’s intellectual property, such

as issuance of a protective order; and (4) any other

relevant factors unique to the facts of the case.

[Id. at 307.]

In State v. Arteaga, the Appellate Division considered the scope of

discovery to which a defendant was entitled where detectives relied on FRT to

investigate a robbery. 476 N.J. Super. at 41-43. The detectives used FRT to

identify the defendant as a suspect, which led the State to charge him with

robbery, assault, and related offenses. Ibid. Upon learning that FRT played a

role in identifying him, defendant sought, pursuant to Rule 3:13-3 and Brady,

discovery of the following thirteen specific items:

1. The name and manufacturer of the facial recognition

software used to conduct the search in this case, and the

algorithm(s) version number(s) and year(s) developed;

2. The source code for the face recognition

algorithm(s);

3. A list of what measurements, nodal points, or other

unique identifying marks are used by the system in

creating facial feature vectors including, if those marks

are weighted differently, the scores given to each

respective mark;

4. The error rates for the facial recognition system

used, including false accept and false reject rates (also

called false match and false non-match rates -- FMR

and FNMR), as well as documentation as to how the

error rates were calculated, including whether they

reflect test or operational conditions;

5. The performance of the algorithm(s) used on

applicable NIST Face Recognition Vendor Tests, if

available;

6. The original copy of the query or “probe” photo

submitted to the Real Time Crime Center [--] Facial

Identification Section;

7. All edited copies of the query or “probe” photo

submitted to the facial recognition system, noting if

applicable, which edited copy produced the candidate

list that the defendant was in, and a list of edits, filters,

or any other modifications made to that photo;

8. A copy of the database photo matched to the query

or “probe” photo and the percentage of the match, rank

number, or confidence score assigned to the photo by

the facial recognition system in the candidate list;

9. A list or description of the rank number or

confidence scores produced by the system, including

the scale on which the system is based (e.g. percentage,

logarithmic, other);

10. A copy of the complete candidate list returned by

the face recognition or the first [twenty] candidates in

the candidate list if longer than [twenty], in rank order

and including the percentage of the match or confidence

score assigned to each photo by the facial recognition

system;

11. A list of the parameters of the database used,

including:

1. How many photos are in the database;

2. How are the photos obtained;

3. How long the photos are stored;

4. How often the database is purged;

5. What the process is for getting removed from

the database;

6. Who has access to the database;

7. How the database is maintained;

8. The Privacy Policy for the database;

12. The report produced by the analyst or technician

who ran the facial recognition software, including any

notes made about the possible match relative to any

other individuals on the candidate list; and

13. The name and training, certifications, or

qualifications of the analyst who ran [the] facial

recognition search query.

[Id. at 43-44 (alterations in original) (footnotes

omitted).]

Upon review of the defendant’s specific discovery needs, testimony from

the defendant’s proposed FRT expert, and the overall record at issue, the

Arteaga court held that the defendant had “demonstrated a ‘particularized need

for [the] discovery’” under Pickett because his “list of specific items sought,

aided by an expert,” was adequately tethered in breadth and scope to the

defendant’s specific defense needs. Id. at 63 (alteration in original) (quoting

Pickett, 466 N.J. Super. at 279). Accordingly, the Appellate Division held

that, on “the facts of this case,” the defendant was entitled to discovery of

those thirteen items. Id. at 57.

IV.

Applying those principles to this record, we first hold that the trial judge

did not abuse his discretion in ordering the State to turn over information in

the following two categories of discovery: (1) information identifying the

non-proprietary FRT tools and materials that the State utilized; and (2)

discovery on how the State used those FRT tools and materials. The trial

judge correctly relied on guidance and principles articulated in Arteaga, Rule

3:13-3(b), and Brady, as well as the inherent authority of trial judges to order

discovery when doing so ensures the fairness of a trial.

Second, to the extent the order compelled the State to produce

proprietary information, including the FRT source code, we hold that the trial

judge abused his discretion, and we reverse without prejudice. As the

Appellate Division explained in Pickett, proprietary investigative software

information is only discoverable upon a fact-specific determination that a

defendant possesses a particularized need for the information. The trial judge

never made such a determination here, and it would be premature for us to do

so at this stage, first because the record has not been sufficiently developed,

and second because the defense does not yet know whether it needs the

proprietary FRT source code.

Under the facts of this case, we hold that the State must produce:

(1) discovery identifying the FRT tools and materials the State used in its

investigation; and (2) discovery related to how the State utilized those FRT

tools and materials. We address the scope of each category in turn.

As to the first category of discovery, the State must turn over

information identifying the FRT tools and materials it utilized so that the

parties can further address issues regarding the FRT’s reliability. By

“identifying information,” we refer generally to basic information such as the

name and manufacturer of the software used to conduct the search or searches;

the version numbers; the years of development; key metrics of performance,

including publicly available documentation related to error rates; and

information as to the database and operator of the FRT that the State used in

this case. Such information is relevant to defendant’s defense because it

serves to identify the investigative tools utilized by the State. We do not limit

the list of FRT tools or materials to those examples. In this case, it is difficult

to imagine that the discoverable information would not include such

straightforward items as items one, twelve, and thirteen of defendant’s request.

The State must also turn over discovery related to how it used FRT in its

investigation. By that, we refer to such items as the original photograph

utilized as the “probe photograph”; any edited copies of that probe photograph;

and the photographs that “matched” the probe photograph. In general terms,

the discoverable information should include such straightforward items as

items five, seven, and nine of defendant’s request. We note the State has

already partially turned over items eight and ten to defense counsel. But

discovery of additional items relating to how the State used FRT in this case is

potentially relevant for, at a minimum, the following three reasons:

impeaching the interviewees’ identification, challenging the State’s

investigation, and demonstrating potential third-party guilt.

First, as to impeaching the interviewees’ identification of defendant, no

one has identified defendant as the person who shot and killed the victim. The

CI was not shown video footage or still photos of the shooting. Instead, the

police showed the CI images of individuals in the vicinity of the shooting a

few minutes prior to the accident. From those images, the CI identified two

people (Fat Daddy and Parkz), without using their real names, and provided

law enforcement with Instagram usernames of both men. The CI also provided

law enforcement with the name, address, car make, and Instagram username of

Fat Daddy’s ex-girlfriend. Subject to what discovery will show, police

obtained a mugshot of only defendant (not Parkz or anyone else) utilizing

FRT. Law enforcement chose to use FRT in its investigation. Defendant’s

meaningful defense includes the State’s use of FRT.

Second, the FRT discovery is relevant to defendant’s ability to challenge

the investigation. For example, defendant may utilize the FRT discovery to

impeach the State’s investigating officers, challenge how those officers

employed the technology, and contest their knowledge of the efficacy and

reliability of the specific FRT used. In addition, FRT discovery will enable

defendant to understand how law enforcement utilized FRT to tie him to the

crime. Defendant disagrees with the State’s assertion that even without the use

of FRT, the police would have interviewed defendant’s sister, ex-girlfriend,

the resident, or the local man. Here, the sister and ex-girlfriend identified

defendant in still photographs where he is allegedly depicted along with other

people ninety minutes before the shooting. They did not identify him as the

shooter. And the local man independently identified one of the individuals

depicted on the Ring doorbell video as “Fats” or “Fat Daddy.” Defendant’s

meaningful defense includes probing the way in which the State investigated

him.

Finally, as to third-party guilt, the results of the State’s FRT searches

seemingly reflect multiple “matches” to the probe image of defendant. The

results provided by the State suggest it ran two different FRT searches. The

first run identified other people as closer “matches” to the probe image than

defendant. In that run, defendant was ranked eighth on a list of ten. The other

run showed that five other people “matched” defendant’s purported probe

image. Accordingly, regardless of how many searches were performed,

discovery from the State about how it utilized FRT is relevant to third-party

guilt.

To the extent the trial judge’s order compelled the State to produce

proprietary information, such as the FRT source code, we reverse in part

without prejudice. As the Appellate Division explained in Pickett, discovery

of proprietary technological information involves a two-step inquiry: first, a

party seeking to protect the information must show good cause that such

information is proprietary or confidential; and second, upon doing so, the

“burden must shift” to a defendant to show that they possess “a particularized

need for such discovery.” 466 N.J. Super. at 304-05, 307.

Here, the trial judge erred in granting defendant discovery of proprietary

information without considering either step. Specifically, the trial judge’s

interpretation of Arteaga -- as automatically compelling disclosure of

proprietary information for all defendants any time FRT was used in their

investigation -- was unduly broad. In Arteaga, the Appellate Division properly

considered Pickett’s “particularized need” inquiry in light of the defendant’s

specific defense needs and -- upon “independent review” of the record at issue

-- found that the defendant had made such a showing. Arteaga, 476 N.J.

Super. at 57, 63. The Arteaga court’s finding of a “particularized need” for the

defendant at issue did not universally render proprietary FRT information

disclosable in all future FRT cases, without regard to whether a future

defendant has shown a particularized need. Ultimately, as with any discovery

matter, disclosure of proprietary information remains fact-intensive and casespecific.

Indeed, on this record, we cannot resolve whether defendant “articulated

a particularized need for the proprietary source code and [any] related

[proprietary] information.” Pickett, 466 N.J. Super. at 324. Adjudicating legal

questions pertinent to the discoverability of the FRT’s proprietary source code

and any other proprietary FRT information that the State utilized in this case

would be premature for the following two reasons.

First, the record has not been sufficiently developed to address reliability

questions related to the particular FRT used. In Arteaga, for example, the

defendant had produced “a detailed declaration from the defense’s proposed

FRT expert, opining about the accuracy issues associated with FRT and why

the defense needed the discovery.” 6 476 N.J. Super. at 49. The expert

explained that “[u]nderstanding the [NYPD RTCC’s facial recognition] model,

the data that was used to train the model, and the class-specific performance

for the image(s) in this case are critical to understand the reliability of the

output,” and reasoned that, “without this additional information, the current

results of the image recognition software in this case cannot be considered

scientifically replicable or relevant.” Ibid. (second alteration in original)

(emphases added). Based on the existing record here, however, questions

related to the discoverability of the proprietary FRT information are

premature. 7

The OPD supplied the Court with a copy of the expert report the Arteaga defendant had used in that case.

As to the State’s arguments regarding the proper remedy for non-compliance with the trial judge’s discovery order, in Arteaga, the State never argued that it would be unable to obtain the discovery related to proprietary information. 476 N.J. Super. at 57. And after the appellate court directed the trial judge on

Second, defendant does not yet know whether he needs proprietary

information to address the FRT at issue. His defense counsel clarified during

oral argument before us that “I don’t know that the source code is totally

relevant to me,” and that “I don’t know how helpful it will be in my case.”

The OPD agrees that the record can be developed on remand. Accordingly, to

that end, we reverse without prejudice the part of the order compelling the

State to produce proprietary FRT information, including “[t]he source code for

the face recognition algorithm(s).” On remand, if warranted, defendant may

pursue a discovery request for any proprietary FRT-related information upon a

showing of particularized need. See Pickett, 466 N.J. Super. at 279, 306-07.

If, after the parties make their respective showings, they reach an impasse,

then the trial judge can premise his findings and legal conclusions on a record

that is more focused on the particular FRT at issue.

remand to order the State to produce discovery in Arteaga, the State did not file notice of leave to appeal to this Court. Here, the trial judge never reached the question of the appropriate remedy. Defendant was provided with only four pages of discovery, but after the trial judge entered the discovery order, the State attempted to comply. On remand, if the State fails to produce the categories of FRT information that we deem discoverable in this opinion, we leave it to the sound discretion of the trial judge to craft an appropriate remedy.

We affirm the order compelling discovery as modified. The State is

required to produce (1) discovery identifying the FRT tools and materials it

utilized, and (2) discovery related to how the State used FRT here. We reverse

without prejudice that part of the order compelling the State to produce the

source code of the FRT algorithm and any similar proprietary information

applicable to the FRT utilized by the State. On a more developed record,

defendant may pursue a discovery request for the FRT’s proprietary

information if warranted. We remand for further proceedings consistent with

this opinion.

CHIEF JUSTICE RABNER and JUSTICES PATTERSON, PIERRELOUIS, WAINER APTER, NORIEGA, and HOFFMAN join in JUSTICE

FASCIALE’s opinion.

State v. Tybear Miles

Authorities cited

Opinion · public domain