State v. Bray
383 P.3d 883, 281 Or. App. 584, 2016 Ore. App. LEXIS 1266 (2016)
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Rule of Law:
A criminal defendant's constitutional right to compulsory process to obtain evidence from a non-party witness, even if it contains private information, can overcome privacy interests if the subpoena is suitably specific and the court employs an in camera review process with appropriate protections to filter for relevance and privilege. However, a prosecutor's Brady obligation to disclose exculpatory evidence does not extend to information held by a private third-party entity not acting on the government's behalf, nor does the Wardius reciprocal discovery principle compel the state to obtain such data.
Facts:
- The defendant, an anesthesiologist and part-time instructor, and J, a research chemist, met through an internet dating service.
- After their first and only encounter, they had drinks together and then walked to the defendant's apartment.
- J left the defendant's apartment some five hours later, having sustained injuries to her jaw, eye, neck, shoulder, upper back, and vaginal area.
- The defendant claimed J's injuries resulted from consensual "rough sex," while J alleged that the defendant repeatedly assaulted her, including spitting in her face, slapping her, choking her into unconsciousness, pulling out some of her hair, and raping her vaginally and anally.
- After leaving the defendant's apartment, J texted a friend stating, "I think he raped me last night," conducted Google research regarding Oregon criminal law to determine if what happened "counted as rape," and then called the police to report the defendant, leading to his arrest.
Procedural Posture:
- The defendant was charged in circuit court (court of first instance) with two counts of first-degree rape, two counts of first-degree sodomy, and one count each of strangulation and fourth-degree assault.
- Before trial, the defendant issued a subpoena duces tecum to Google requesting J's email and internet activity, which Google refused to disclose, citing the Electronic Communications Privacy Act (ECPA).
- The defendant filed a motion to compel the state to obtain the Google data, arguing an ECPA exception for law enforcement, and the trial court initially ruled the information exculpatory and material.
- After J refused to consent to the data's release, the defendant renewed his motion, which the trial court granted, ordering the state to obtain the data from Google within 10 days.
- The state resisted the order, moving for reconsideration (denied by a new judge in the trial court), claiming difficulty obtaining J's IP address (which they already possessed), and presenting an "expert" who falsely claimed Google did not retain data for the relevant period.
- The trial court chastised the state for non-compliance and eventually ordered the state to cooperate with the defense to obtain the IP address and send Google a subpoena and preservation letter.
- During this time, the defendant also moved to compel the state to secure J's computer for in camera inspection, citing concerns that J had disposed of or deleted relevant information, but the trial court denied this motion.
- J filed a motion asserting rights under the Crime Victims' Bill of Rights to prohibit defendant from accessing her computer and Google data, which the trial court denied.
- J, as appellant, filed an interlocutory appeal of this ruling to the Oregon Supreme Court (highest court), which dismissed it as untimely (State v. Bray, 352 Or 34, 279 P3d 216 (2012) (Bray I)).
- The state later informed the trial court that Google required a search warrant, not a subpoena, but believed a warrant could not issue for exculpatory evidence; the trial court disagreed and instructed the state to apply for one.
- Defendant filed a motion to dismiss based on prosecutorial misconduct, which the trial court denied. However, the trial court also reversed its earlier ruling, concluding it lacked authority to compel the state to obtain J's Google information.
- The trial court also denied the defendant's renewed motion to compel J to comply with a subpoena duces tecum requiring her to bring her laptop or a clone to trial.
- After the defendant was convicted, he requested and was granted an order requiring J to provide a sealed clone of her hard drive for potential appellate use.
- The state, as appellant, filed an interlocutory appeal of this order to the Oregon Supreme Court (highest court), which affirmed the order (State v. Bray, 352 Or 809, 291 P3d 727 (2012) (Bray II)), after which J complied.
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Issue:
Does a trial court err in denying a criminal defendant's motion to compel a complaining witness to comply with a subpoena duces tecum for her computer's contents, intended for in camera review by the court for exculpatory or impeachment evidence, when balanced against the witness's privacy rights?
Opinions:
Majority - Schuman, S. J.
Yes, the trial court erred in denying the defendant's motion to compel J to comply with the subpoena duces tecum for her computer, but correctly denied the motion to compel the state to obtain Google data and the motion to dismiss for prosecutorial misconduct. The Court of Appeals affirmed the convictions in part, vacated in part, and remanded for further proceedings. The court found that the state's conduct regarding Google data—its "repeated, intentional, and conceded defiance of a court order"—was "seriously disturbing" and a "lack of good faith." However, it did not deny the defendant a fair trial because the trial court ultimately ruled it lacked authority to issue the order the state defied, meaning the misconduct had no impact on the ultimate fairness of the trial. Regarding the Google information, the court found no statutory or constitutional basis to compel the state to obtain it. Under ORS 135.815(1), the information was not in the prosecutor's "possession" or "control" because Google was not required to disclose it under the ECPA (18 USC § 2702(a), (b)) and the prosecution could not "directly obtain" it without an intermediate entity. Private entities like Google are not considered part of the "prosecution team" like the police are. The Brady v. Maryland obligation (373 US 83) to disclose material exculpatory evidence applies to evidence in the prosecution's "actual or constructive possession," which extends to others acting on the government’s behalf (like police) but not to private entities such as Google. The Wardius v. Oregon (412 US 470) reciprocal discovery principle is narrow, forbidding enforcement of non-reciprocal discovery rules that penalize a defendant, but not the prosecution, for failing to disclose information; it does not create a broad obligation for the state to obtain information from private parties that neither side ultimately accessed. The trial court erred, however, in denying the defendant's motion to compel J to comply with the subpoena duces tecum for her computer. The defendant has a "broad right" to subpoena evidence under ORS 136.567(1) and ORS 136.580(1), and the digital contents of a computer are the "functional equivalent of written statements." While a witness has a privacy interest, it is not absolute. As established in United States v. Nixon (418 US 683), a generalized interest in confidentiality cannot prevail over the fundamental demands of due process in the fair administration of criminal justice, provided the subpoena is suitably specific and not overbroad. The defendant's proposed procedure—a forensic expert conducting a targeted search under a protective order, with results submitted to the court in camera for review for relevance and privilege—adequately addressed J's privacy concerns. The trial court's concern that a protective order would not adequately protect confidentiality was insufficient to deny the motion, especially as courts presume orders will be obeyed and a neutral expert could be appointed. The court held that the Zolin/Frease/Lammi framework for in camera review of potentially privileged or confidential material applies in this context, requiring an initial showing of reasonable belief that review would yield relevant unprivileged evidence, followed by the court's discretionary decision considering factors like material volume and importance.
Analysis:
This case significantly clarifies the boundaries of a criminal defendant's discovery rights and the state's disclosure obligations in Oregon, especially concerning electronic data held by third parties. It underscores that while prosecutors have a Brady duty for information in their "actual or constructive possession" (including law enforcement), this does not extend to compelling private entities like Google. Conversely, it reaffirms the robust nature of a defendant's compulsory process right under state statute and the Sixth Amendment, establishing a clear framework for in camera review of sensitive electronic data (Zolin/Frease/Lammi framework) held by non-party witnesses. This framework provides a crucial mechanism to balance a witness's privacy rights with a defendant's due process right to present a defense, ensuring that specific, relevant evidence can be accessed while preventing unwarranted invasions of privacy.
