A Defendant’s Right to Discovery of Texts & Email of Alleged Victims

Summary:

1. Rights to due process & right to compel witnesses
2. No absolute right to evidence unless it is relevant
3. Texts and email presents novel challenges when not in state’s possession
4. Defendant must compel production from person who created them or the company
   that stores them
5. Federal Stored Communications Act
6. No Ohio law equivalent
7. Federal Rules of Crim. Pro. 16 & 17 (court to compel, subpoena)
8. Hearing before the judge

A criminal defendant has the protection of certain constitutional rights
during the course of his or her trial. The most basic of these are the
right to a fair trial and the right to mount an adequate defense. The
former is rooted in the Fifth Amendment to the Constitution’s guarantee
of “due process” and the latter is the sum of the Sixth Amendment’s
various guarantees that the defendant has the right to know the charges,
the right to present witnesses and confront witnesses against him or her,
and the like. From these rights, courts have also described an obligation
for the government to hand over to the defense any exculpatory evidence.

These rights of trial are not as broad or absolute as a defendant might
wish; there is no absolute right to evidence, whether in the form of a
witness’ testimony, documents, or other sources. In order to introduce
evidence, a defendant must show that the evidence is material –
relevant – to his or her defense. In many cases, this materiality
is quite obvious and requires little explanation. In the case of electronic
activity, however, such evidence can present novel challenges.

When electronic communications, which might be emails, text messages, or
social media posts, are not in the prosecutor’s possession, they
will not be part of the discovery process that satisfies the Sixth Amendment
and Fifth Amendment rights to access the evidence against one and to have
fair procedure during the trial. In those cases, a defendant must compel
the production of the materials – assuming, of course that the defendant
knows they exist and are material – from either the person who created
them or the company which provides the email, text service, or social
media platform.

These types of materials, which are stored on servers even if they are
deleted from the user’s phone, email account, or social media stream,
are governed by the federal Stored Communications Act – and even
Ohio state courts often refer to this law when evaluating evidence, although
there is no state equivalent law. The Stored Communications Act, although
not written to cover the type of evidence examined here, provides certain
privacy protections to the users of the electronic services, which means
that this evidence typically cannot be released without a court ruling
to override those privacy protections, or the user furnishing permission
for the release.

In order to compel these materials, the defendant must follow procedures
under either state or federal Rules of Criminal Procedure for issuing
subpoenas. In both systems, the relevant Rules are Rule 16 and Rule 17.
Rule 16 permits a defendant to request the court to order production of
relevant evidence in the possession of the prosecutor, and Rule 17 sets
forth a procedure for issuing a subpoena to demand the evidence from a
person who is not either a defendant or a plaintiff in the case.

Where a defendant wants to establish, for instance, that what the victim
of an alleged sexual assault said on social media was quite different
from his narrative to police, that defendant must file a subpoena with
the court, which will almost always trigger a hearing before the court
where the defendant can make his or her case for why the evidence is necessary.
The prosecutor or the electronic media provider can move to quash –
or cancel – the subpoena. If the subpoena was issued to, for instance,
Facebook, or Gmail (Google), then that electronic service provider may
appear at the hearing (arguing against producing the evidence) in addition
to the prosecutor’s resistance.

Only if the defendant persuades the court at the hearing that the evidence
requested is material and relevant will the court actually order the production
of the documents or materials. These hurdles add up to a significant burden
for the defendant who is trying to present the fullest and most robust
defense possible, but also one that is impossible to ignore in these times
of ubiquitous electronic communication. The more that defendants raise
these challenges, the more likely that courts will begin to understand
the prohibitive nature of the rules and see the importance of electronic
communications to criminal defense.