State v. Bray
363 Or. 226, 422 P.3d 250 (2018)
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Rule of Law:
A trial court must enforce a criminal defendant's trial subpoena duces tecum for a witness's computer and its digital contents if the material has potential use for cross-examination, provided the court imposes conditions to protect the witness's privacy interests during forensic examination.
Facts:
- Defendant Bray was accused of a crime involving J.
- Following the incident, J used her computer to conduct internet searches to determine if what had happened to her constituted rape.
- J also created journal entries on her computer related to Bray or the alleged incident.
- In March 2011, within weeks after the alleged rape, J "flattened" her computer's hard drive, wiping all saved data, due to fear of media hacking.
- Defendant Bray served J with a subpoena requiring her to appear at trial and bring her computer.
- J appeared at trial but did not bring her computer, testifying that she had wiped the hard drive and the data no longer existed.
Procedural Posture:
- Defendant Bray was charged with a crime.
- The trial court issued an order requiring the district attorney to take action permitted by the Stored Communications Act (SCA) to obtain J's internet searches from Google.
- The district attorney issued a subpoena to Google for J's internet searches, but Google refused to comply, stating a search warrant was required.
- The trial court denied defendant Bray's subsequent motion to compel the district attorney to obtain a search warrant or SCA order for J's internet searches from Google.
- The trial court denied defendant Bray's motion to dismiss the case for prosecutorial misconduct related to the delay in obtaining Google's records.
- Defendant Bray served J with a subpoena duces tecum to produce her computer at trial.
- J appeared at trial but did not produce her computer.
- The trial court denied defendant Bray's motion to compel J to produce her computer for forensic examination, citing privacy concerns.
- Defendant Bray was convicted in the trial court.
- Defendant Bray appealed to the Oregon Court of Appeals, which affirmed the trial court's denial of the motion to dismiss for prosecutorial misconduct but reversed and remanded the trial court's decision regarding the computer subpoena, finding error in the denial of the motion to compel J to produce her computer.
- The State of Oregon petitioned the Oregon Supreme Court for review of the Court of Appeals' decision regarding the computer subpoena.
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Issue:
Did the trial court err by denying a criminal defendant's motion to compel a witness to produce her computer for forensic examination at trial, given the witness's privacy interests and the potential for the computer to contain exculpatory evidence for cross-examination?
Opinions:
Majority - Not specified in provided text
Yes, the trial court erred in denying the defendant's motion to compel J to produce her computer because the computer potentially contained evidence useful for cross-examination, and the court had an obligation to enforce the subpoena while establishing protective measures for privacy. The court first addressed the issue of the state's failure to obtain J's internet searches from Google, concluding that due process did not require the trial court to compel the district attorney to take further action (like applying for a search warrant or SCA order) to obtain information from Google. This was because alternative means existed for the defendant to show J's potential doubts about the incident (her own testimony about the searches), and the loss of evidence from Google was not proven to be caused by the state's delay. The court then turned to the subpoena for J's computer. Applying State v. Cartwright, which interpreted ORS 136.580, the court stated that an "ordinary subpoena" compelling production at trial must be enforced "unless it is clear that the material or testimony has no potential use at trial." The court determined that J's computer, given her testimony about internet searches regarding rape and journal entries, clearly had potential use for cross-examination. It acknowledged the privacy concerns raised by the state and the trial court, citing State v. Mansor which recognized an individual's privacy interest in their computer. However, the court established that when enforcing such a subpoena for digital contents, the trial court must impose conditions to protect privacy, such as specifying the contours of the forensic examination and terms of protective orders, potentially including in camera inspection for privileged information. A generalized privacy objection must yield to the specific need for evidence in a criminal trial, as established in United States v. Nixon. Since the trial court did not find that the evidence had "no potential use," and failed to enforce the subpoena and implement privacy safeguards, its denial was erroneous and not harmless, requiring vacating the conviction and remanding for further proceedings.
Analysis:
This case significantly clarifies the procedural pathway for criminal defendants to access digital evidence held by third-party witnesses in Oregon, explicitly extending existing subpoena statutes (ORS 136.580) to encompass electronic devices like personal computers. It balances a defendant's constitutional rights to confrontation and compulsory process with a witness's privacy interests in their digital data. The ruling establishes a framework for trial courts to manage the forensic examination of personal computers, requiring specificity in what is sought and the implementation of protective orders to safeguard private or privileged information, thus setting a precedent for handling digital evidence in future cases.
