Order Addressing IGG DNA

Filed: 10/25/202315:07:31
Second Judicial District, Latah County

Julie Fry, Clerk of the Court
By: Deputy Clerk - Reeves, Tamzen
IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF
THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH
STATE OF IDAHO,
Case No. CR29-22-2805
Plaintiff,
ORDER ADDRESSING IGG DNA
vs. AND ORDER FOR IN CAMERA
REVIEW
BRYAN C. KOHBERGER,
Defendant.
I. INTRODUCTION
On November 13, 2022, four University of Idaho students were found murdered. As part
of
law enforcement’s investigation into the homicides, the FBI employed the use of investigative
crime scene.
genetic genealogy (“IGG”) using DNA located on a Ka-Bar knife sheath found at the
tree of individuals whose DNA matched
Through the IGG process, the FBI constructed a family
to
with the DNA found on the knife sheath. The FBI then sent local law enforcement a tip
was arrested on December 30,

investigate Defendant Bryan Kohberger (“Kohberger”). Kohberger
and one count of Burglary.

2022, and charged with four counts of Murder in the First Degree
used to obtain the arrest warrant for Kohberger or

Nothing about law enforcement’s use of IGG was
to obtain the search warrant for his DNA.
The State has now filed a motion to prevent the disclosure of the IGG information to
the
of
defense. The defense opposes the motion and filed a motion to compel requesting discovery
the family tree built by the FBI.

everything pertaining to the IGG investigation, including

AND ORDER FOR IN CAMERA REVIEW - 1
Disclosure of information gathered from an IGG investigation is an issue of first impression
in Idaho. The State claims that the IGG information was not used to obtain any warrant and will not
be used at trial. For the reasons set forth below, the Court finds that the defense is likely entitled to
see at least some of the information from the IGG investigation, even if it may ultimately be found
to have no relevance to Kohberger’s defense. However, because the Court has not seen exactly what
information pertaining to the use of IGG is available, the Court cannot say precisely what should
and what should not be disclosed at this time. Because of this uncertainty, the Court grants the
State’s request for an in camera review of the IGG information. After such review, the Court will
enter the appropriate discovery and protective orders.
II. BACKGROUND
On November 13, 2022, four University of Idaho students, Kaylee Goncalves, Madison
Mogen, Xana Kernodle, and Ethan Chapin, were found deceased in Goncalves, Mogen, and
Kernodle’s off-campus home on King Road in Moscow, Idaho. The cause of death for each was
ruled a homicide.
While investigating the murders, law enforcement discovered “a tan leather knife sheath
laying on the bed next to Mogen.” Aff. of Probable Cause, Statement of Brett Payne. “The Idaho
State Lab later located a single source of male DNA (Suspect Profile) left on the button snap of the
knife sheath.” Id.
“Once law enforcement had single-source DNA from the Ka-Bar knife sheath, they
conducted what is called a short tandem repeat (“STR”) analysis. STR DNA analysis involves
looking at 20 regions within human DNA and allows law enforcement to make a direct comparison
between two STR DNA profiles. Law enforcement submitted the STR DNA profile obtained from
the Ka-Bar knife sheath to the Combined DNA Index System (“CODIS”), a database of STR DNA

the source of the
profiles from convicted offenders, arrestees, and crime scene evidence, to identify
DNA. No match was found.” Mot. for Protective Order at 2.
Meanwhile, law enforcement continued to investigate the homicides. They conducted a
“video canvass” “in the area of the King Road Residence.” Aff. 0f Probable Cause, Statement of
Brett Payne. The “video canvass” revealed a white sedan that piqued the interest of investigators.
Id.
The video footage was provided to a forensic examiner with the FBI who initially identified
the
sedan as a “201 1-2013 Hyundai Elantra,” but later “indicated it could be a 201 1-2016 Hyundai
Elantra.” Id. On November 29, 2022, after reviewing video footage and asking law
enforcement
Elantra in the area, a 2015 white Elantra

agencies to be on the lookout for a white Hyundai
was located in Pullman, Washington. Id.

registered to Defendant Bryan Kohberger (“Kohberger”)
that
The State’s case alleges that with this information, law enforcement determined
a roommate of
Kohberger’s “physical description” matched that given investigators by surviving
to
the victims, and that Kohberger’s cellphone “travel [was] consistent

with that of the white Elantra”
law enforcement
in the early morning hours of November l3, 2022. Id. Based on this information,
video surveillance around

believed Kohberger to be the driver of the white Elantra that was seen on
Id. Law enforcement also obtained cell phone

the King Road residence at the time of the homicides.
had “utilize[ed] cellular
records indicating that prior to the homicides, Kohberger’s cellphone
at least twelve occasions prior to

resources that provide coverage to the area of 1122 King Road on
November l3, 2022.” Id.
“On December 27, 2022, Pennsylvania Agents recovered the trash from the Kohberger
That evidence was sent to the Idaho State Lab for

family residence located in Albrightsville, PA.
State Lab reported that a DNA profile obtained from the

testing. On December 28, 2022, the Idaho

trash and the DNA profile obtained from the sheath, identified a male as not being excluded as the
biological father of Suspect Profile.” Id.
On December 30, 2022, Kohberger was arrested and charged with four counts of Murder in
the First Degree and one count of Burglary. A search warrant for Kohberger’s DNA was issued on
January 5, 2023. “A traditional STR DNA comparison was done between the STR profile found on
Ka-Bar knife sheath and Defendant’s DNA. The comparison showed a statistical match
—
the
specifically, the STR profile is at least 5.37 octillion times more likely to be seen if Defendant is the
source than if an unrelated individual randomly selected from the general population is the source.”
Mot. for Protective Oder at 5-6.
III. INVESTIGATIVE GENETIC GENEALOGY

State
On June l6, 2023, the State filed a Motion for Protective Order. In its Motion, the
STR DNA profile from the

brings to light law enforcement’s use of IGG
“to find a lead” after the
law
knife sheath did not return a match in CODIS. It is unknown to this Court when exactly
enforcement employed the use of IGG.
A brief discussion on what IGG entails is necessary to better understand the significance, or
insignificance, of its use in this case.

in the
Consumer genetics has exploded, driven by the second-most popular hobby
to
United States: genealogy. This hobby has been co—opted by law enforcement
solve cold cases, by linking crime-scene DNA with the DNA of a suspect's relative,
which is contained in a direct-to-consumer (DTC) genetic database. The relative's
or genetic informant, wordlessly guiding law
genetic data acts as a silent witness,
enforcement to a handful of potential suspects.
Driven mostly by genealogical hobbyists, the majority of the DTC ancestry genetic
which are
testing services rely on single nucleotide polymorphisms (SNPs),
mutations at the level of the individual nucleotides. . .
.
SNP data can also reveal whether users share segments of their genome with other
users, relatedness through a common ancestor. This works by analyzing
predicting

the percentage of overlapping bits of genetic code, so-called “identical by descent”
sections, that one shares with relatives. Assuming no historical inbreeding, one
likely shares roughly 12% of their genome with first cousins, about 3% with second
cousins, and less than 1% with third cousins. Thus, by finding and quantifying
overlapping genetic regions, DTC companies can predict genetic familial
relationships. . . .
The leading consumer genetics companies, 23andMe and Ancestry, allow

consumers to download their raw genetic data in plain-text format, which can then
be uploaded to third-party websites. These websites provide a range of additional
services, including interpreting the clinical relevance of mutations and allowing
individuals to expand the reach of their genealogical search. Up to 62% of DTC
customers will upload their genetic data to third—party websites for free or for a small
fee. One such third-party website is GEDMatch, an open-access service that is free
for the most basic searches.
GEDMatch users can connect with even more distant relatives who used different
do so by uploading their
testing services like FamilyTreeDNA or My Heritage. They
SNP profile, generated elsewhere, onto GEDMatch. The raw SNP data is analyzed
a list of likely relatives
using a simple algorithm, and the site then produces
information with the
automatically, without the need to share any underlying genetic
has cultivated a large community of
putative relative. In just a few years, GEDMatch
hundreds of thousands of users. . . .
Because the identity of the person from whom the crime-scene sample came is ofien
unknown, law enforcement uses a false name--“John Doe,” for example--and
submits it to GEDMatch. Then, when their “John Doe” matches someone in the
who might be
database, they use genealogical data to determine a common ancestor
a great-great grandfather or grandmother. They then triangulate other data, such as
from that common
birth, voting, and military records, to build out the pedigrees
be suspects. As we
ancestor, identifying all of the potential individuals who may
each have about 1,000 fourth cousins and 5,000 fifth cousins, depending on the
The methodology is
degree of relation, this process can be quite time-consuming.
known by different names. In the forensic genetics research community, it is referred
to
to as “long-range familial searches” (LRFS). Law enforcement sometimes refers
this as Forensic Genetic Genealogy (FGG).
Catch
Teneille R. Brown, JD, Why We Fear Genetic Informants: Using Genetic Genealogy to
Serial Killers, 21 Colum. Sci. & Tech. L. Rev. 1 (2019).
in 2019.
It is worth recognizing that the information above comes from an article published
It is fair to assume that since 2019 DTC testing and law enforcement’s use of IGG/FGG have

increased exponentially. Bicka Barlow, one of the witnesses who testified on behalf of Kohberger,
explained the process of IGG.
[T]he use of these databases [like GEDmatch] does not necessarily lead to a single
individual as a potential suspect. . . .
The determination of who is or is not a relative is subjective and based on the

. . .
in such a database
length of DNA shared between two individuals. The comparisons
do not yield an identification of someone identical [to] the uploaded SNP data; rather
it would identify possible relatives who might be in the database.
Once a putative relative has been identified, a family tree is created, working
backwards to grandparents and possible great-great—grandparents. The family tree is
and
then build [sic] down. The construction of these family trees is highly subjective
. In
is based on the use of public records such as marriage and birth certificates. . .
some instances, contacting individuals for further family information [like out of
wedlock births, name changes, or adoptions]. This process leads to a pool of
individuals rather than one specific individual.
Decl. of Bicka Barlow at 3-4.
The State describes law enforcement’s use of IGG in this case as follows:
[I]nvestigators used IGG to begin the process

of developing a lead to the
utilized
individual who left DNA on the Ka—Bar knife sheath. The Idaho State Police
from
a private laboratory to develop a SNP [single nucleotide polymorphism] profile
the DNA on the Ka-Bar knife sheath. The private laboratory started using genetic
but after law enforcement decided the FBI
genealogy to develop a family tree,
would take over, the private laboratory ceased its efforts and sent the SNP profile to
the FBI.
The FBI uploaded the SNP profile to one or more publicly available genetic
members of the suspect based on
genealogy services to identify possible family
shared genetic data. The FBI could then View through the genetic genealogy
who left
service’s portal information regarding potential relatives of the suspect
DNA on the Ka-Bar knife sheath. Based on information the FBI could see on the
genetic genealogy service’s portal, the
FBI went to work building family trees of the
left at the crime scene in an attempt to identify
genetic relatives to the suspect DNA
tree using the same
the contributor of the unknown DNA. The FBI built the family
learn more about
tools and methods used by members of the public who wish to
vital records
their ancestors. For example, the FBI consulted social media, viewed
contained
such as birth and death certificates, and viewed other information already
information
in the user portal for the genetic genealogy service, including unverified
submitted by other users of the genetic genealogy service. The
FBI also consulted
to law enforcement for information on
subscription-based databases available
individual people. The product of the genealogy conducted by the
FBI was a family

tree that contained the name, birthdate, and death date (if applicable) of hundreds of
relatives as well as their familial connections between each other and the suspect:
Bryan C. Kohberger. The FBI then sent to local law enforcement a tip to investigate
Defendant.
The IGG process pointed law enforcement toward Defendant, but it did not
The FBI did not, for
provide law enforcement with substantive evidence of guilt.
from the Ka-Bar
example, conduct a direct comparison between the SNP profile
knife sheath and Defendant’s SNP profile. That type of direct comparison required
the more traditional STR DNA analysis, which was conducted by the Idaho State
Police, not the FBI.
Mot. for Protective Order at 4—5.
or a family tree was used by law

Notably, nothing about the SNP profile, the use of IGG,
warrant for
enforcement in obtaining the arrest warrant for Kohberger, the January 5, 2023, search
case.‘
Kohberger’s DNA, or any other search warrant in the
The State now seeks a protective order for “information related to the use of IGG
in this
and not disclose to

case.” Mot. for Protective Order at 6-7. Specifically, the State wishes to protect
the defense the following:
l. The raw data related to the SNP profile and the underlying laboratory
chain of
documentation related to the development of the profile, such as
notes, etc.
custody forms, laboratory standard operating procedures analyst
2. All information related to IGG efforts in creating a family tree and identifying
Defendant’s potential relatives, including the identities of the genetic genealogy
service(s) and the personally identifying information
of Defendant’s relatives.
Id. at 7-8.
to create the
While the FBI no longer has access to View much of the information it used
family tree, the State acknowledges that the

FBI does possess “the family tree itself, notes jotted
created to document the

down by FBI agents as they constructed the family tree, and any records
obtained from the SNP

At oral argument on August l8, 2023, the Court asked the State directly if any
1
information
tree created was used to obtain any warrant in the case. The State represented
profile, the use of IGG, or the family IGG tree was used in the affidavit
that it was not. The Court has confirmed that nothing about the use of or a family
or in the affidavit to obtain the search warrant for Kohberger’s
DNA.
to obtain the arrest warrant for Kohberger

removal of the SNP profile from the genetic genealogy service(s) pursuant to the DOJ Policy.”2
Mot. for Protective Order at 6. The State has represented that it has already disclosed the suspect
SNP profile to the defense. Reply in Supp. of Mot. for Protective Order at 2.
The defense opposes the State’s Motion for Protective Order, and on June 22, 2023, filed
Defendant’s Third Motion to Compel Discovery. A portion of that Motion to Compel asks that the
State be required to turn over the following information related to the use of IGG:
1. All reports generated by any lab that conducted SNP testing on any sample in
this case, including from samples where “unknown” males, not the defendant,
were identified.
2. Copies of all communications between laboratory personnel and any other

person or organization, with regard to the instant case, including letters, memos,
emails, intemet posts, press releases, and records of other communications
(including communications with regard to any DNA profile uploaded to any
public or private DNA database).
3. All documentation associated with any database search, including, but not
limited to, CODIS, NDIS, GEDMatch, Family Tree DNA, and/or felon
databases, case sample databases, missing persons databases, and internal quality
assurance databases. The documentation should include, but is not limited to, the
input profile, the input search parameters, the search output, all reports, all
correspondence, and any follow-up actions.
4. Add documents related to any genetic genealogy search, including, but not
limited to, the creation of a user profile(s), account(s) information, automated
search results, uploading of data, all queries and search results from any private
or public databank(s), family tree information, and all other documents, reports,
notes or other communications pertaining to genealogy DNA database searches.
5. All documents related to any genetic genealogy investigations, including but not
limited to additional collection and/or testing of DNA samples, notes of any
interviews, documents obtained related to ancestry, and/or recommendation for
further testing.
6. Alldocuments related to comparison of any DNA samples collected during the

genealogy investigation to crime scene evidence.
2
DO] policy required that Kohberger's SNP DNA profile be removed from the genetic genealogy
service(s).

7. The name and address bf all persons found to have sufficient sharing
centimorgams with the “subject” profile to be identified as a match in the report
created in this case.
Def.’s Third Mot. to Compel Discovery at 3-4.
In support of its Motion to Compel and in opposition to the State’s Motion for Protective
Order, the defense submitted the Declaration of Anne C. Taylor (defense counsel), Declaration of
Bicka Barlow, Declaration of Stephen B. Mercer, Affidavit of Leah Larkin, and the Declaration of
Gabriella Vargas.
On July 14, 2023, the State filed its Reply in Support of Motion for Protective Order and the
Affidavit of Rylene L. Nowlin.
On August 18, 2023, a hearing on the State’s Motion for Protective Order and Defendant’s
Third Motion to Compel was conducted. The State was represented by William W. Thompson, Jr.,
Anne C.
Ashley S. Jennings, Jeff Nye, and Ingrid Batey. Kohberger was present and represented by
of the State
Taylor, Jay Logsdon, and Elisa Massoth. Following the defense’s presentation evidence,
reserved cross-examination of Leah Larkin and Gabriella Vargas.
On August 29, 2023, the State filed a Notice of Intent not to Cross-Examine Defense
Witnesses, District Court Decision, and Records to Explain Witness Contact. On August 30, 2023,
the State filed State’s Supplemental Response to Defendant’s Third Motion to Compel Discovery.
On September 1, 2023, the defense filed a Response to State’s Notice of Intent not to Cross-
Examine Defense Witnesses, District Court Decision, and Records to Explain Witness Contact. On
September 12, 2023, the State filed a Supplement to

State’s Notice of Intent not to Cross-Examine
Defense Witnesses, District Court Decision, and Records to Explain Witness Contact. The issue is
now fiilly submitted and ready for a decision.

IV. CASE LAW
The issue of disclosure of information gathered from an IGG investigation is an issue of first
impression in Idaho. The State claims that the IGG information will not be used at trial and was not
used to obtain any warrant. While there is no precedent in Idaho, what limited cases are available
from other jurisdictions are worth discussing.
1. In the Matter of: Michael Green
First, in support of its position, the State submitted a Ruling on Motion to Compel
Production of Discovery authored by a California trial court in the case of In the Matter of: Michael
Green. Ex. A attached to Mot. for Protective Order. There, law enforcement found DNA on the
victim’s nightgown. A private laboratory created an SNP DNA profile of an unidentified male
suspect. Law enforcement submitted that profile to GEDmatch and received information about
individuals who shared DNA with the suspect’s profile. Law enforcement then identified Michael
Green as a suspect. Law enforcement collected garbage discarded by Green, tested it for DNA, and
compared that STR DNA profile to the DNA located on the victim’s nightgown. The DNA
matched. Law enforcement then got a search warrant for Green’s DNA, which also matched.
Green argued he was entitled to the genetic genealogy information including the family tree.
Green asserted the information was necessary to ascertain the following: details of what, when,
where, and how the investigation into him occurred; the identity of other possible DNA matches
that surfaced so these individuals could be interviewed (since such evidence could be exculpatory if
their DNA matched to the DNA on the nightgown); and possible violations of the Fourth
Amendment.
The trial court held that 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 through the FGG investigation as being related by DNA to Green, or any other
information from its FGG investigation.” The court reasoned,
[T]he 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. Green has presented no evidence as a part of his motion or supplemental
who share
filings that tend to show that the persons identified through GEDmatch
DNA with Green can otherwise be linked to the crime he is accused of committing.
A mere possibility that the information might help the defense does not establish that
this evidence is material.
While the IGG information was not found to be discoverable in In re: Michael Green, this
Court located three opinions that suggest discovery of such information may, at times, be
appropriate.
2. State v. Bortree
State v. Bortree, 2021 WL 3716803, rev'd and remanded on other grounds by State v.
and an attempted
Bortree, 170 Ohio St. 3d 310, 212 N.E.3d 874 (2022), involved a sexual assault
and then forced to perform

aggravated murder. In 1993, the Victim, Anita, was taken gunpoint
at
sexual acts on the perpetrator. The perpetrator then cut Anita’s throat and lefi her in a ditch. Anita
survived and was able to provide law enforcement with a description of her attacker and his vehicle.
Her clothing was collected for evidence, but at that time “DNA testing was in its infancy” and only
blood-type testing was done. No suspect was identified.
In 2015, a suspect DNA profile from the semen/saliva mixture left on Atina’s clothing was
extracted. The DNA profile was submitted to CODIS and matched to another “as-yet unidentified
assailant.” Without a suspect, law enforcement turned to forensic genetic genealogy (“FGG”). First,

a private lab analyzed the DNA and generated an SNP DNA profile. AdvanceDNA then uploaded
the “DNA file” to GEDmatch.
After uploading the file to GEDmatch, AdvanceDNA found a woman who shared
approximately 3% of her DNA with the suspect sample, leading AdvanceDNA

to believe the
woman was possibly a second cousin of the unknown suspect. AdvanceDNA then built out a family
tree for the woman using public information on GEDmatch and other public records like marriage
certificates and birth records. Once its work was completed, AdvanceDNA provided law
enforcement with a “leads summary report” that focused on four brothers.
Law enforcement began investigating Ralph Bortree, one of the brothers identified by
AdvanceDNA, because he fit the physical description given by the Anita in 1993, owned a vehicle
that matched the description given by Anita, and lived near Anita when the crime was committed.
Law enforcement collected discarded cigarettes from Bortree. The cigarettes were tested for DNA
and the DNA was consistent with the suspect DNA profile obtained from Anita’s clothing. A
warrant for Bortree’s DNA was then obtained and his DNA matched the DNA on Anita’s clothing.
Distinguishable from this case, the affidavit for a search warrant of Bortree’s
home
contained a detailed description of the DNA process, including the use of FGG. It is unclear if the
affidavit for a search warrant for Bortree’s DNA also included FGG information.
Prior to trial, Bortree filed a motion to suppress the testimony of the owner of
AdvanceDNA, Amanda Reno, arguing that 1) the state failed to establish that Reno had complied
with GEDmatch’s terms of service; 2) Reno did not preserve all her research to show how the
Bortree family was identified as a lead; and 3) Reno relied, in part, upon unverified family trees
The trial court denied Bortree’s

uploaded on public ancestry websites by unknown individuals.

motion. At trial, the state called Reno to explain how the FGG process created new leads in Anita’s
case.
On appeal, Bortree argued the decision denying his motion to suppress was error. The Court
of Appeals of Ohio disagreed, noting that 1) Reno testified that she had complied with GEDmatch’s
terms of service and there was no evidence to the contrary; 2) Bortree was able to cross-examine
Reno at both the suppression hearing and at trial about the process she used; and 3) it was
inconsequential that Reno used unverified information from unknown individuals in narrowing the
focus to the Bortree family because “the information provided by AdvanceDNA was merely a tool
to provide leads to law enforcement. Law enforcement was then able to check the vehicles Bortree
owned, etc., to find if he would be a good possible suspect.” State v. Bortree, 2021 WL 3716803,
rev'd and remanded on other grounds by State v. Bortree, 170 Ohio St. 3d 310, 212 N.E.3d 874
(2022).
The Court of Appeals concluded that:
In this case the trial court found that the evidence did not establish any illegal
activity by engaging in forensic genetic genealogy research, and the research did not,
in fact, yield any substantive evidence that Bortree had engaged in any criminal
activity. Rather, ‘[i]t merely narrowed the focus of law enforcement.’ We agree with
the trial court's conclusion that the research merely narrowed the focus of law
enforcement, and consequently we can find no error with the trial court's
determination to allow the testimony related to forensic genetic genealogy in this
matter.
Id.
3. State v. Burns
In March 2023, the Supreme Court of Iowa released a decision wherein the facts discuss law
enforcement’s use of IGG. State v. Burns, 988 N.W.2d 352, 357 (Iowa 2023). In 1979 the victim,
Martinko, was murdered. Years passed with no leads. In 2018, law enforcement employed the
services of a private lab, Parabon, to perform “kinship analysis and genetic genealogy” on a suspect

DNA profile recovered from the crime scene. Parabon uploaded the DNA profile to GEDmatch.
Based on the information obtained, Parabon directed law enforcement to investigate the descendants
of four sets of great-great grandparents.
Based on the information for Parabon and further investigation by law enforcement, police
contacted an individual named Janice Burns and obtained her DNA. Parabon determined that the
suspect DNA profile was likely from Janice’s first cousin. Janice had three first cousins, all
brothers. Police collected DNA from two of the brothers via their trash. The DNA did not match
that of the suspect profile. Police then collected DNA from a straw the third brother, Jerry Bums,
discarded. The DNA on the straw could not be eliminated as the major contributor to the DNA
found at the crime scene. Police then obtained a search warrant for Bum’s DNA, which matched the
suspect sample.
The opinion does not discuss any discovery issues or suppression issues surrounding the use
of IGG; however, the facts of the case suggest at least some information concerning the IGG was
discovered to Burns such as the private lab used (Parabon), the genetic genealogy service used
(GEDmatch), and how the information obtained led back to Burns (i.e., law enforcement contact
with Janice). Without this information in the record, there would presumably be no mention of it on
appeal.
4. State v. Hartman
The Court of Appeals of Washington recently addressed whether a defendant had standing
to challenge the DNA comparison of DNA collected at a crime scene with DNA in the GEDmatch
database (i.e., the “analysis of the GEDmatch database”). State v. Hartman, 534 P.3d 423, 432
(Wash. Ct. App. 2023).

In 1986, 12-year-old MW was raped and murdered. Semen was found on MW’s body, but
over the next 30 years the DNA found did not match any suspect and did not match any profile in
CODIS. In 2017, law enforcement sent the DNA found on MW’s body to a genealogy consultant,
Barbara Rae—Venter, and to a genetic genealogist at Parabon. Both Rae-Venter and Parabon
uploaded the DNA sample to nongovemment consumer DNA databases, including GEDmatch,
FamilyTree DNA, and MyHeritage. Through this, two second cousins of the unknown suspect
were
identified. Parabon then used information from GEDmatch and other publicly available sources, like
census records, vital records, social media, and newspaper archives, to build out a family tree.
Parabon also contacted at least one family member to get additional information about the family
tree.
Based on the IGG work, it was suggested that law enforcement investigate Gary Hartman
and his brother. Police then collected garbage from each brother to test for DNA. The DNA located
on Hartman’s garbage matched that found of MW’s body. A warrant was then obtained for
Hartman’s DNA and that also matched.
Prior to trial, Hartman moved to suppress Parabon’s analysis and DNA evidence later
collected or analyzed because of Parabon’s IGG work, including the analysis of DNA from
Hartman’s discarded garbage. “Hartman argued that analyzing the consumer databases for ‘the
DNA he shared with his close relatives was a warrantless, suspicionless search by a state actor that
disturbed his private affairs in violation of the state and federal constitutions.” Hartman, 534 P.3d at
429. Hartman “reasoned that the trial court should suppress ‘all evidence obtained’ because of
Parabon’s analysis, including the tests that directly matched his DNA to the killer’s, as fruit of the
poisonous tree.” Id.

The trial court found that Hartman “did not have standing to challenge the analysis of his
relative’s DNA profile, which his relatives volunteered to have analyzed and posted on an open—
source, unrestricted website. The court concluded that Hartman did not have dominion or control
over the item seized (his relative’s raw data DNA) nor the public database where the DNA profiles
were compared (GEDmatch). Hartman had no authority to exclude others from accessing his
relatives’ DNA profiles on GEDmatch.” Id. at 430 (internal quotation marks omitted). Further, the
court found that “Hartman failed to show that the State intruded on his private affairs because any
individual or entity could have directly accessed this voluntarily published and public information.
Thus, Hartman had no standing to challenge the comparison with his relatives’ DNA profiles in the
GEDmatch database. As a result, the tn'al court ruled that the State did not need a search warrant or
court order to access GEDmatch due to the public and unrestricted availability of the GEDmatch
data.” Id. Hartman was convicted of first-degree murder after a bench trial. He then appealed the
trial court’s ruling on his suppression motion.
Notably, Hartman did not assert a Fourth Amendment violation, only a violation of
Amendment.
Washington State’s constitution, which provides greater protections than the Fourth
On appeal, Hartman asserted that he had “a reasonable expectation of privacy in the segments of his
DNA that he had in common with relatives that those relatives voluntarily uploaded to GEDmatch.”
Id. at 431. The Court of Appeals stated that “without the GEDmatch analysis, there would not have
been a later warrant for Hartman’s DNA — just as there was not for the preceding three decades. It is
undisputed that Hartman never supplied a DNA sample voluntarily

to any source. Thus, if the trial
court had concluded that the GEDmatch investigation was unconstitutional, it would have inevitably
suppressed the other DNA evidence as the fruit of the poisonous

tree. . . . In sum, if Hartman is
successful in his challenge to the GEDmatch comparison, the later DNA comparisons of Hartman’s

AND ORDER FOR IN CAMERA REVIEW - l6
DNA to the crime scene DNA would also be excluded because they would not have occurred absent
the alleged [constitutional violation].” Id.
The Court concluded that “there is [no] privacy interest in common DNA that a relative has
voluntarily uploaded to a public database.” Id. at 437. Thus, Hartman did not have a valid privacy
interest in the segments of his DNA that he had in common with his cousins when his cousins
voluntarily posted the genetic information on a public website. Therefore, Parabon’s investigation
of GEDmatch’s database did not violate Washington’s constitution because it did not disturb
Hartman’s private affairs. “Because there was no intrusion on Hartman’s private affairs, he had no
standing to challenge the DNA comparison of DNA collected at the crime scene with the
GEDmatch database.” Id. at 437—43 8.
While the case does not include specific information about what information was contained
in the search warrant for Hartman’s DNA or what evidence the State intended to use at trial, it is
clear that Hartman was provided discovery on the genetic genealogy investigation and prepared a
suppression motion as a result of that information.
V. ANALYSIS
In Idaho, “Idaho Criminal Rule 16 governs discovery in criminal proceedings.” State v. Ish,
166 Idaho 492, 510, 461 P.3d 774, 792 (2020). “Supervision of discovery is a discretionary power
of the trial court. Trial courts have broad discretion . . . in determining whether or not to grant a
motion to compel.” State v. Pendleton, No. 50078, 2023 WL 6133219, at *4 (Idaho Sept. 20, 2023).
While “[d]ue process requires all material exculpatory evidence known to the State or in its
that the
possession be disclosed to the defendant,” “[t]here is no constitutional requirement
defense of all police investigatory work on a

prosecutor make a complete and detailed accounting to

case.” Dunlap v. State, 141 Idaho 50, 64, 106 P.3d 376, 390 (2004) (citations and quotation marks
omitted).
The State’s argument is that 1) the IGG information is not discoverable under Idaho
Criminal Rule 16, and 2) if the information is discoverable, good cause exists for the Court to issue
a protective order denying discovery of the IGG information. State’s Resp. to Def.’s Third Mot. to
Compel Discovery at 2. “If the Court finds that the IGG information is relevant to guilt or
punishment, the State is simply asking for an opportunity to provide additional information to the
Court in camera, so the Court can decide whether the information the State seeks to protect contains
exculpatory information.” Reply in Supp. of Mot. for Protective Order at 8.
The defense argues that the IGG information it seeks “falls within the ambit of Rule
16(b)(4) and (5),” and that Kohberger “has a right to discover and question the investigation that led
to him.” Objection to State’s Mot. for Protective Order at 3, 7.
1. Rule 16(b)(4): Material to the preparation of the defense
In support of its argument that the IGG information is not discoverable, the State argues
that “the IGG information is not material to the preparation of the defense” because “Defendant
is charged with killing four people, not with being related to a particular person. The mere fact
that uploading the completed SNP profile into a publicly available genetic genealogy service led
law enforcement to relatives of Defendant does not affect the strength of the evidence against
him.” Mot. for Protective Order at 10-11. “The family tree built by the FBI merely pointed law
enforcement to Defendant, and law enforcement followed that lead to develop the substantive
evidence of guilt that was used for his arrest and that will be used at trial.” Reply in Supp. of
Mot. for Protective Order at 7. The State contends that the only relevant DNA evidence is the

DNA found on the knife sheath and the DNA taken directly from Kohberger because those DNA
profiles can be directly compared, and, according to the State, matched.
The defense argues that the IGG information sought is material to the preparation of the
defense because the defense must have an opportunity to challenge “how the IGG profile was
created and how many other people the FBI chose to ignore during their investigation.”
Objection to State’s Mot. for Protective Order at 4. “The possibility of other relatives who might
be similar to Mr. Kohberger is extremely important to the Defense in this case. The processes
used in this method of identification may be extremely important to Mr. Kohberger’s defense.
The timing and steps utilized are extremely important to Mr. Kohberger’s case investigation and
defense.” Decl. of Anne C. Taylor in Supp. of 3rd Mot. to Compel at 3. Additionally, the
“defense team has discussed the use of statistics in this type of case with experts who have
informed [defense counsel] that the manner of identifying Mr. Kohberger via this type of search
may have significant impacts on the statistical analysis of the CODIS profile generated by the
Idaho State Police Lab. Without access to the actual genetic genealogy search methods and
results, it is impossible for qualified experts to address these issues.” Id. at 4.
Idaho Criminal Rule 16(b)(4) requires that on written request of the defendant, the
prosecuting attorney must produce information that is “material to the preparation of the
defense.”
As the Idaho Supreme Court recently explained,
Materiality in this context has not been defined by the Idaho Criminal Rules, nor
by Idaho's case law. However, the Federal Rules of Criminal Procedure provide a
similar right to the defendant for the discovery of documents that are “material to
preparing the defense.” Fed. R. Crim. P. 16(a)(1)(E). Where a federal rule is
identical in material respects to an analogous Idaho rule, this Court may look to
decisions on the scope of the federal rule for guidance on interpreting our Idaho
rule.

Pendleton, No. 50078, 2023 WL 6133219, at *5.
Federal court decisions have described “materiality” as follows:
‘[M]ateriality’ is a low threshold satisfied so long as the information would

have helped to prepare a defense. To show materiality under the federal rules the
defendant must demonstrate that the requested evidence bears some abstract
logical relationship to the issues in the case. There must be some indication
that the pretrial disclosure of the disputed evidence would [enable] the defendant
significantly t0 alter the quantum 0fproof in his favor. The evidence is material as
role in
long as there is a strong indication that it will play an important
uncovering admissible evidence, aiding witness preparation, corroborating
testimony, or assisting impeachment or rebuttal.
Id. at *6 (internal citations and quotation marks omitted) (emphasis added).
to show
Kohberger has presented enough evidence to meet the “low threshold” required
at least some of the IGG information sought is material to the preparation of the defense.
First, the defense presented the Declaration of Bicka Barlow as well as testimony from
Barlow at the August 18, 2023, hearing. Barlow is a licensed attorney in California who also has
a B.S. in Genetics, an M.S. in Developmental Genetics, and a minor in Cellular Biology, and has
worked on numerous DNA cases. Barlow opined that “[i]t is imperative to the defense in this
case to know how Mr. Kohberger was identified and who else in his family tree might have been
identified as a subject of investigation. . . . it is unknown to the defense in this case, whether
It is
every lead or possible suspect was further investigated and ruled out by genetic testing.
. . .
not possible for any defendant to investigate family relatives who are unknown to him and may
in fact have been in the area of the crime.” Decl. of Barlow at 6-7. Essentially, the defense would
like to know whose DNA matched the suspect SNP DNA profile uploaded to the genetic
tree. The defense could then

genealogy service(s) and who else was then identified on the family
investigate individuals who share DNA with Kohberger: to determine

if these individuals were
around the King Road residence at the time of the murders and if law enforcement obtained these

individuals’ DNA and tested it against the DNA found on the knife sheath. The defense seeks
this information to determine whether Kohberger was or is the sole suspect.
Next, Barlow asserts that “an IGG search can impact the statistical rarity of a profile in a
manner similar to a cold hit search, meaning that the statistic that is generated by an analysis of a
IGG search could yield a relevant and admissible statistic. . . . Research in the area of the impact
of an IGG search on the statistical weight of a DNA comparison, using standard STR DNA
a defense
profiles, is ongoing.” Id. This idea was also echoed by defense expert Stephen Mercer,
attorney with experience litigating DNA cases including work on two IGG matters. Mercer
testified that an SNP profile can shed light on the reliability of an STR profile, but first one needs
to know how the SNP profile was obtained, the lab process, the family tree, and who on the
family tree was not tested for STR purposes. Essentially, according to Barlow
and Mercer, the
SNP profile and the information gathered from it can be used to attack the rarity and reliability of
the STR profile, which the State will present at trial. This information would potentially
challenge the State’s statistic, based on the STR analysis, that “the comparison [between
match — specifically,
Kohberger’s DNA and the DNA on the knife sheath] showed a statistical
the STR profile is at least 5.37 octillion times more likely to be seen if Defendant is the source
than if an unrelated individual randomly selected from the general population is the source.”
Mot. for Protective Oder at 5-6.
the
Additionally, like in Hartman and Bortree, it is plausible that Kohberger may use
IGG information obtained in discovery to challenge the admissibility of other evidence. While
such a challenge seems futile since the IGG information was not used to obtain the search
warrant for Kohberger’s DNA and will not be presented at trial by the State, the Court cannot say

with cenainty that the defense team could not make a succeseful challenge if given the
information they seek.
At least some of the IGG information the defense requests “bears some abstract logical
relationship to the issues in the case,” and, based on the defense experts and the limited case
law
on the use 0f IGG, there is “some indication that the pretrial disclosure of the disputed evidence
would [enable] the defendant significantly to alter the quantum of proof in his favor.” Pendleton,
No. 50078, 2023 WL 6133219, at *6. The Court cannot say that the material sought will not
“play an important role in uncovering admissible evidence, aiding witness preparation,
corroborating testimony, or assisting impeachment or rebuttal.” Id. For

these reasons, Kohberger
has met the “low threshold” required to show at least some of the IGG information is material to
the preparation of the defense.
2. Rule 16(b)(5): Scientific tests or experiments
The State also argues that “the family tree created by the FBI [and notes made by the FBI
‘results or reports’ of
during the genealogy investigation] cannot accurately be described as the
‘scientific tests or experiments’ and falls outside of Rule l6(b)(5).” Mot. for Protective Order at
15. Rule l6(b)(5) “does not require the State to disclose what investigators do with the results or
reports from scientific experiments.” Reply in Supp. of Mot. for Protective Order at 4. According
to the State, the rule only requires the disclosure of the results or reports themselves, in this case
the STR DNA profile and the SNP DNA profile created from the Ka-Bar knife.
Rule l6(b)(5) requires the following:
must permit the

[o]n written request of the defendant, the prosecuting attorney
defendant to inspect and copy any results or reports of physical or mental
examinations, and of scientific tests or experiments, made in connection with the
particular case, that are in the possession, custody or control of the prosecuting
attorney or the existence of which is known or is available to
the prosecuting
attorney by the exercise of due diligence.

(emphasis added).
It is undisputed that the SNP profile itself is the result of a scientific test done on
evidence in the case. Thus, the question becomes is the family tree and notes related to building
the family tree results or reports of scientific tests or experiments made in connection with the
case. Arguably, although computer generated, the comparison of the suspect’s SNP profile to
other SNP profiles uploaded by individuals to genealogy services like GEDmatch is a scientific
process. “SNP data can also reveal whether users share segments
of their genome with other
users, predicting relatedness through a common ancestor. This works by analyzing

the
percentage of overlapping bits of genetic code, so—called

‘identical by descent’ sections, that one
shares with relatives.” Teneille R. Brown, JD, Why We Fear Genetic Informants: Using Genetic
Genealogy to Catch Serial Killers, 21 Colum. Sci. & Tech. L. Rev. l, 12 (2019). “FGG employs
the GEDmatch algorithm to find a percentage of shared genetic material, which in turn predicts
what SNP profiles

relationship.” Id. at 36. Thus, the results from that comparison process, i.e.,
matched with the suspect’s SNP profile, are results of scientific tests made in connection with the
case that must be disclosed to Defendant. These results would not encompass the whole family
tree that was likely built using publicly available sources or notes taken by agents working on the
investigation. But these results would include the list of SNP profiles generated
from the
and the percentage of DNA

genealogy service(s) that connected with the suspect’s SNP profile
those profiles shared with the suspect profile.
3. Rule 16(b)(8): Police Reports
The State argues “the records related to IGG” do not fit the description of police “reports
or memoranda.” Reply in Supp. of Mot. for Protective Order at 5. The State further argues that
to records
“[e]ven if the records constituted reports or memoranda, this subsection only applies

‘in the possession of the prosecuting attorney,’ I.C.R. 16(b)(8), and the State does not possess the
FBI’s records related to IGG.” Id. at 6. Again, the State acknowledges that the FBI has “the
family tree itself, notes jotted down by FBI agents as they constructed the family tree, and any
records created to document the removal of the SNP profile from the genetic genealogy
service(s) pursuant to the DOJ Policy.” Mot. for Protective Order at 6.
Rule 16(b)(8) requires that “[o]n written request of the defendant, the prosecuting
attorney must furnish to the defendant reports and memoranda in possession

of the prosecuting
with the investigation or

attorney that were made by a police officer or investigator in connection
prosecution of the case.” (emphasis added).
Black’s Law Dictionary defines “report” as “[a] formal oral or written presentation of
facts or a recommendation for action.” REPORT, Black's Law Dictionary (11th ed. 2019).
“Memorandum” is defined as “[a]n informal written communication used esp. in offices.”
MEMORANDUM, Black's Law Dictionary (11th ed. 2019). Given the broad definitions of
“report” and “memorandum,” the family tree and notes taken by

FBI agents during their
made by a police officer or

investigation arguably qualify as “reports and memoranda . . .
investigator in connection with the investigation . . . of the case.” The same would be true of any
that developed the SNP profile from the

reports or memoranda made by the private laboratory
DNA on the Ka-Bar knife sheath and started using genetic genealogy to develop a family tree
since the lab employees were working as investigators in connection with the investigation of the
case. However, without first viewing the IGG material, the Court cannot say with certainty what
does and what does not fall within the scope of Rule 16(b)(8).

4. Possession, custody, or control of the prosecuting attorney
As noted above, the State argued in its reply that information in possession of the FBI is
not Within the “possession of the prosecuting attorney.” In a footnote in its Motion for Protective
Order, the State made the same argument: “Even if the notes jotted down by the FBI agents or
the family tree constituted reports or memoranda, as explained above, those records are not ‘in
the possession of the prosecuting attomey.’” Mot. for Protective Order at 15. The State echoed
this argument on August 18, 2023, asserting that the State and the Court had no authority to
require the FBI to turn over the materials it possesses related to its investigative work on this
case.
Rule 16(b)(4) and Rule 16(b)(5) require discovery of materials “that are in the
Rule 16(b)(8) only

possession, custody or control of the prosecuting attorney.” Similarly,
requires disclosure of reports or memoranda within the “possession

of the prosecuting attorney.”
Rule 16(b)(5) further requires disclosure of material if “the existence of which is known or is
available to the prosecuting attorney by the exercise of due diligence.”
In interpreting “in the possession, custody or control of the prosecuting attorney,” the
Idaho Supreme Court recently held that “if a law enforcement agency is involved in the
are material to that defendant's
prosecution of a defendant, then that agency's records—which
or control of the prosecutor.

guilt or innocence—are effectively within the possession, custody,
While the prosecutor is not required to comb the files of every agency, the prosecutor's
possession, custody, or control of the evidence may be presumed

if the agency participates in the
investigation of the defendant. Or . . . the investigating police agency holding relevant and
material evidence acts as an ‘arm of the prosecution’ for the purposes of criminal discovery
statutes.” Pendleton, No. 50078, 2023 WL 6133219, at *11.

Here, the FBI was working in conjunction with the Moscow Police Department and the
Idaho State Police to investigate the homicides. From the Court’s understanding, the FBI set up a
public tip line, conducted the IGG analysis, identified the suspect car as a 2011-2016 Hyundai
Elantra, and possibly aided in interviewing witnesses outside of Idaho. The FBI was indeed a law
enforcement agency acting as an arm of the prosecution to investigate this case. Thus, the FBI’s
records pertaining to its work on this case are records within the possession, custody, or control
of the prosecutor for the purposes of discovery. But see Professor Matthew Steffey, Mississippi
Criminal Procedure: Proposed Rules and Comments, 31 Miss. C. L. Rev. 1, 118 (2013)
(discussing Mississippi Criminal Rule 17.2(e), which discusses the prosecuting attorney’s
disclosure obligations under Rule 17.2 that is like Rule 16. “The prosecuting attorney is not
and material held by federal law

generally deemed responsible for disclosure of information
enforcement agencies”).
5. Disclosure by Order of the Court 16(b)(10)
Rule 16 also contains a broad provision allowing for the disclosure of material by court
order:
On motion of the defendant showing substantial need in the preparation of the

otherwise covered by
defendant's case for additional material or information not
this Rule, and that the defendant is unable without undue hardship to obtain the
substantial equivalent by other means, the court may order the additional material
or information to be made available to the defendant. The court may, on the
or modify the order if
request of any person affected by the order, vacate
compliance would be unreasonable or oppressive.
I.C.R. 16(b)(10) (emphasis added).
There is limited case law in Idaho discussing what constitutes a “substantial need in the
preparation of the defendant’s case.” However, in State

v. Foldesi, an unpublished opinion from
the Idaho Court of Appeal, Foldesi filed a motion pursuant to Rule 16(b)(8), now Rule 16(b)(10),

to obtain a copy of the Boise drug task force unit’s policies and procedures. State v. Foldesi, No.
34519, 2009 WL 9146255, at *2 (Idaho Ct. App. Feb. 6, 2009), Foldesi was charged with
delivery of a controlled substance after a detective with the Boise drug task force purchased
informant.
methamphetamine from Foldesi as part of a controlled buy set up by a confidential
Foldesi’s lawyer explained he needed the information sought so that he could “cross-examine,
that
intelligently, the officer that was involved” in Foldesi’s case. Defense counsel further argued
a violation of the task force’s policies and procedures could “go to the alibi defense.” The district
court held that Foldesi had not shown a substantial need for the policies and denied his request
for disclosure. During trial, Foldesi’s lawyer was able to cross-examine the officers about what
and was able to establish

policies and procedures were in place at the time of the controlled buy
that they were not “followed verbatim.” Nonetheless, a jury found Foldesi guilty.
On appeal, the Court of Appeals held that “even if we assume, without deciding, that the
district court abused its discretion in determining not to compel production of the information
sought in advance of the trial, we also conclude that the error

was harmless.” State v. Foldest,
No. 34519, 2009 WL 9146255, at *3 (Idaho Ct. App. Feb. 6, 2009). “Because Foldesi was able
to demonstrate the officers' noncompliance with their policies and procedure by cross-
examination of the officers during the trial, we conclude that he has not shown prejudice from
the district court's ruling not to compel production of the policies and procedures before the
trial.” Id.
Here, the State has made clear that it does not intend to produce any evidence or witness
testimony at trial regarding the IGG information. Thus, unlike in Foldest, Kohberger
will not
have the opportunity to cross-examine anyone involved in the IGG investigation to challenge
anything done during or learned from the IGG investigation.

For the reasons articulated above in

discussing Rule 16(b)(4), Kohberger has established there is “substantial need” for at least some
of the IGG information sought so that he can potentially challenge various parts of the State’s
case against him. Although it is feasible that with the SNP profile the defense may be able to
conduct their own IGG investigation and learn what the State learned, such work would be time
consuming and expensive and would constitute an undue hardship on the defense.
6. Rule 16(g)(2): Informants
The State argues that the genetic genealogy service(s) and the individuals related to
identities
Kohberger whose profiles matched Defendant’s SNP profile are “informants” whose
are protected from disclosure under Idaho Criminal Rule 16(g)(2) and Idaho Rule of Evidence
509(a).
“Disclosure must not be required of an informant's identity unless the informant is to be
order under subsection (1) of

produced as a witness at a hearing or trial, subject to any protective
this rule or a disclosure order under subsection (b)(6) of this rule.” I.C.R. 16(g)(2).
It is well settled that an inforrner's identity need not always be disclosed in a

criminal trial nor in a preliminary proceeding to determine probable cause for an
arrest or a search. The nondisclosure policy exists to preserve anonymity and to
encourage citizens to communicate their knowledge of crime to law
enforcement
officials. However, the extent of informer privilege is not absolute and must give
way [w]here the disclosure of an inforrner's identity, or of the contents of
his
communication, is relevant and helpful to the defense of the accused, or is
essential to a fair determination of cause. The decision to require disclosure of the
confidential inforrner's identity is left to the discretion of the trial court. To
determine the extent of the informer privilege, the trial court must conduct an in
camera examination of the evidence pursuant to I.R.E. 509. Idaho Rule of
Evidence 509(c)(3) provides that in a criminal trial where the State invokes the
relevant to
privilege, if it appears “that an informer may be able to give testimony
any issue in a criminal case the court shall give the public entity the opportunity
to show in camera facts relevant to determining whether the informer, can, in fact,
supply that testimony.”

The in camera hearing provides the trial court with an opportunity to determine
the nature and extent of the benefit to the defendant from disclosure of a
confidential informer's identity; it is desirable and proper to hold such a hearing
before ordering or denying disclosure. The decision whether to hold an in camera
hearing is discretionary and shall not be disturbed on appeal absent a clear
showing of abuse. The subsequent decision whether to require disclosure of the
identity of the confidential informer is also left to the discretion of the trial court.
State v. Hosey, 132 Idaho 117, 119, 968 P.2d 212, 214 (1998) (emphasis added).
While the individuals whose DNA matched with the suspect SNP DNA profile are not
informants in the traditional sense, the Court understands the State’s desire to protect the
individuals from unnecessary exposure, who likely do not even know their DNA was used in this
case. An in camera review of the family tree and other information used in the IGG investigation
will help the Court better determine the benefit to Kohberger’s defense in this case from
disclosure of the identities of these individuals, which in turn will help the Court to put in place
the appropriate protective orders.
7. Rule 16(1): Protective Order
The State argues that good cause exists for the issuance of a protective order barring even
the defense from seeing or knowing the information “to protect hundreds of innocent civilians
from having their personal information, including their names, birthdates, and familial
connections to the defendant in a high-profile quadruple homicide from being disclosed. The
disclosure of the IGG information risks harm not only to these indirect informants but also to the
genetic genealogy service(s) used by the FBI and the IGG investigative technique.” Further,
the
State contends that if the court requires disclosure of the IGG information, both the genetic
to make their
genealogy services and customers of those services would be less likely
information available for law enforcement use.

“At any time the court may, for good cause, deny, restrict, or defer discovery or
inspection, or grant other appropriate relief. The court may permit a party to show good cause by
a written statement that the court will inspect ex parte. If relief is granted, the court must preserve
and seal the entire text of the party’s statement.” I.C.R. 16(1).
While the Court has determined the discovery of at least some of the IGG information in
the FBI’s possession is warranted under Rule 16, the Court, as discussed above, will conduct an
in camera review of the information to better understand the information and more precisely
determine what exactly needs to be turned over and the scope of any protective orders that are
necessary.
VI. CONCLUSION
For the reasons articulated above, the Court finds that Kohberger has made the requisite
showing that at least some of the sought—after evidence 1) is “material to the preparation
of the
defense,” I.C.R. 16(b)(4); 2) encompasses “results or reports . . . of scientific tests or
include “reports and

experiments” made in connection with the case, I.C.R. 16(b)(5); 3) may
memoranda . . . that were made by a police officer or investigator in connection with the
investigation,” I.C.R. 16(b)(8)(2); and 4) may be of “substantial need in the preparation

of the
defendant’s case.”
However, the Court understands the State’s concerns with the identities of unknown
relatives being made public and acknowledges the need for the issuance of protective orders. The
State’s argument that the IGG investigation is wholly irrelevant since it was not used in obtaining
is entitled to
any warrants and will not be used at trial is well supported. Nonetheless, Kohberger
view at least some of the IGG information in preparing his defense even if it may ultimately be
found to be irrelevant. In balancing these interests, the Court will conduct an in camera review of

all the IGG information in the possession, custody, or control of the State, including the FBI, to
determine precisely what needs to be disclosed and what does not need to be disclosed, and issue
any protective orders necessary.
so ORDERED this 2 I’r‘u

day of October
zozwA/MV
Jo C. Judge
Dis 'ctJudge

CERTIFICATE OF SERVICE
I certify that copies of the Order Addressing IGG DNA and Order for In Camera Review were
delivered by email to:
William W. Thompson, Jr., and Ashley S. Jennings

Latah County Prosecuting Attorney
Paservicefcblatahidus
Jeffery Nye
Deputy Attorney General
[email protected]
Ingrid Batey
Deputy Attorney General
[email protected]
Anne C. Taylor and Jay Logsdon

Attorney for Defendant
[email protected]
Elisa C. Massoth
Attorney for Defendant
emassothfilkmrsnet
W
on this gé day of October 2023.
County Clerk of the Court
By: '\
Deputy Clerk


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Filed: 10/25/202315:07:31

Second Judicial District, Latah County

IN THE DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT OF

THE STATE OF IDAHO, IN AND FOR THE COUNTY OF LATAH

was arrested on December 30,

and one count of Burglary.

used to obtain the arrest warrant for Kohberger or

to obtain the search warrant for his DNA.

the family tree built by the FBI.

ORDER ADDRESSING IGG DNA

enter the appropriate discovery and protective orders.

knife sheath.” Id.

ORDER ADDRESSING IGG DNA

DNA. No match was found.” Mot. for Protective Order at 2.

Meanwhile, law enforcement continued to investigate the homicides. They conducted a

Elantra in the area, a 2015 white Elantra

was located in Pullman, Washington. Id.

the victims, and that Kohberger’s cellphone “travel [was] consistent

video surveillance around

Id. Law enforcement also obtained cell phone

at least twelve occasions prior to

November l3, 2022.” Id.

That evidence was sent to the Idaho State Lab for

State Lab reported that a DNA proﬁle obtained from the

ORDER ADDRESSING IGG DNA

biological father of Suspect Proﬁle.” Id.

Mot. for Protective Oder at 5-6.

III. INVESTIGATIVE GENETIC GENEALOGY

STR DNA proﬁle from the

enforcement employed the use of IGG.

insigniﬁcance, of its use in this case.

ORDER ADDRESSING IGG DNA

The leading consumer genetics companies, 23andMe and Ancestry, allow

Serial Killers, 21 Colum. Sci. & Tech. L. Rev. 1 (2019).

ORDER ADDRESSING IGG DNA

explained the process of IGG.

The determination of who is or is not a relative is subjective and based on the

Decl. of Bicka Barlow at 3-4.

[I]nvestigators used IGG to begin the process

ORDER ADDRESSING IGG DNA

Mot. for Protective Order at 4—5.

or a family tree was used by law

and not disclose to

the defense the following:

family tree, the State acknowledges that the

created to document the

obtained from the SNP

ORDER ADDRESSING IGG DNA

2. Copies of all communications between laboratory personnel and any other

6. Alldocuments related to comparison of any DNA samples collected during the

ORDER ADDRESSING IGG DNA

Def.’s Third Mot. to Compel Discovery at 3-4.

Afﬁdavit of Rylene L. Nowlin.

reserved cross-examination of Leah Larkin and Gabriella Vargas.

September 12, 2023, the State ﬁled a Supplement to

now ﬁilly submitted and ready for a decision.

ORDER ADDRESSING IGG DNA

from other jurisdictions are worth discussing.