Over two years ago, Time Magazine reported that Americans check their smart phones for messages almost 50 times a day. Last week, an early morning television medical news and entertainment show, The Doctors, broadcast in Philadelphia, reported Americans check their telephones for messages over 1,000 times a day. In 2014, the U.S. Supreme Court in Riley v. California, 134 S.Ct. 2473 (2014), in the context of cellular telephone evidence seized incident to arrest, referred to the ubiquitous nature of an individual's electronic footprint when it observed that “[t]oday … it is no exaggeration to say that many of the more than 90 percent of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.” Riley, 134 S.Ct. at 2490. (In Riley, the Supreme Court concluded that the government could not search the contents of a cellular telephone seized incident to an arrest without either obtaining a search warrant or showing an exception thereof.) The same may be said for the digital footprint created by individuals utilizing online social media sites. So it is no surprise that courts nationwide are more frequently wrestling with subpoena requests in litigation initiated by the defense in criminal cases for state's witnesses' relevant smart phone data and social media footprint including their posts, messages and emails in pursuit of finding impeachment material, conflicting explanation of events, false information and other grounds for further investigation to, among other reasons, challenge these witnesses' recollection and reliability. Common issues raised by this litigation will be addressed in this article.

Sixth Amendment Right to Compulsory Process

Both the state and federal constitutions guarantee a criminal accused the right to compulsory process for obtaining evidence in his favor. U.S. Constit. Amend. VI provides, in pertinent part, that in all criminal prosecutions, “the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor, and to have the assistance of Counsel for his defence.” The Sixth Amendment right to assert a defense is guaranteed by the Fourteenth Amendment to defendants in state criminal courts of the United States, and accordingly, defendants are entitled to notice, confrontation and compulsory process, which in combination guarantee that a criminal charge may be answered in a manner deemed fundamental to the fair administration of American justice through the calling and examination of favorable witnesses, cross-examination of adverse witnesses, and the proper admission of evidence at trial.

The subpoena duces tecum is a mechanism to obtain relevant evidence but was not intended to provide a means of discovery or a general fishing expedition in criminal cases. See generally United States v. Nixon, 418 U.S. 683, 698 (1974); People v. Gissendanner, 48 N.Y.2d 543, 557 (1979); Teamsters Local 237 v. Transworld Life Ins. Co. of N.Y., 88 A.D.2d 509 (1st Dept. 1982); Constantine v. Leto, 157 A.D.2d 376 (3d Dept. 1990) aff'd 77 N.Y.2d 975 (1991). The basic purpose of it was to expedite the trial by providing a time and place before trial for the inspection of subpoenaed materials so that the trial could proceed in an orderly fashion, avoiding delays.

'State v. Johnson'

An interesting recent case involving the complex litigation concerning defense subpoenas duces tecum for state's witnesses' cell phone text messages and social media evidence is State v. Johnson, 2017 Tenn. Crim. App. LEXIS 271 (April 12, 2017). In Johnson, defendant and another were charged with two counts of aggravated rape. After learning through the discovery process that certain of the state's witnesses had electronic communications with the defendant soon after the crime took place, the defendant moved pre-trial for a court ordered subpoena duces tecum for the production and pretrial inspection of specified cellular telephone and social media communications and information contending the following: that the requested communications were evidentiary and relevant and were not otherwise reasonably procurable in advance of trial by due diligence, that he could not prepare for trial in the absence of this information, and that the motion was “made in good faith” and was “not intended as any general “fishing expedition.” See, e.g., TeamstersLocal 237 v. Transworld Life Ins. Co. of N.Y., supra; Constantine v. Leto, supra.

At the hearing on the defense motion, it was determined that the Knoxville Police Department (KPD) had sent preservation letters under the Electronic Stored Communications Act (SCA), 18 U.S.C. 2701 et. seq., to service providers to preserve information from certain witnesses. The state contended, though, that the KPD did not, in fact, obtain the messaging information of its witnesses.

Nevertheless, counsel for the defendant insisted that the information he requested of Facebook, Instagram, Twitter, Snapchat, and Yik Yak accounts was necessary to ensure that the defendant receive a fair trial (see, e.g., Pennsylvania v. Ritchie, 480 U.S. 39 (1987)) and moved the court for an order to compel the various service providers to provide the data communications requested. Moreover, defense counsel argued that although he was given the cellular telephone data in the week before the trial, he had only just learned that the state had not obtained any electronic communications from anyone other than his client.

Defendant, citing United States v. Nixon, 418 U.S. 683 (1974), contended that he need only establish that there could be information on the witnesses' social media accounts that was material and relevant. The defense also asserted that the discovery materials were replete with information that “there was a lot of text messaging and social media communications that were going on about this party that night” and that one of the state's witnesses, in particular, participated in social media and text messaging communications immediately after leaving defendant's bedroom in the company of defendant. Defendant also contended that during police interviews with the witnesses, there was discussion “about whether or not they should have their social media taken down.”

On the other hand, the social media providers whose information was also subpoenaed contended that the appropriate procedure to obtain the electronic evidence was to seek by subpoena the information directly from the users, the state's witnesses. More specifically, in response to the subpoena requests, Twitter advised that they had no records, and Facebook and Instagram agreed “to produce non-content records … as permitted under the SCA, after giving the users 21 days' notice to object.” See SCA §2702(b)(1) (disclosure permitted if content was publicly available at any time).

After the hearing concluded, the trial court granted the motion to quash the subpoenas duces tecum as to the four state witnesses and denied the motion as to all the service providers, finding that Tennessee Rule of Criminal Procedure Rule 17, which is similar to Federal Rule of Criminal Procedure 17, excludes statements of witnesses as “content” information excludable from disclosure under the SCA, as the federal law deals only with the production of information from service providers and not by end users or customers. (Rule 17(d)(1) provides that “[a] subpoena may order a person to produce the books, papers, documents, or other objects the subpoena designates” either “in court before trial or before they are to be offered in evidence.”; cf., 18 U.S.C. §3500; see New York statutory discovery: C.P.L. §§240.44, 45; People v. Rosario, 9 N.Y.2d 286 (1961) cert. den. 368 U.S. 866)).

The court also found that the subpoenas were oppressive and unreasonably demanding—the effort that the witnesses had to expend to comply with the subpoenas was oppressive. See generally People v. Price, 100 Misc.2d 372, 379 (N.Y. Co. 1979); People v. Harris, 2012 N.Y. Misc. LEXIS 3076 (N.Y. Co. 2012).

Furthermore, the court also found that the state lacked standing to move to quash the subpoenas that were issued to the service providers themselves. The court followed the rule followed by the majority of courts that a party has standing to move to quash a subpoena addressed to another only if the subpoena infringes upon the movant's legitimate interests. See, e.g., Brown v. Thompson, 23 Misc.3d 1109A (Queens Co. 2009), 2009 N.Y.L.J., 21 (Queens Co., March 23, 2009, Dollard, J.). A person who does not have a legally protectable interest in subpoenaed materials has no standing to challenge either the form of the subpoena issued to a third party or the manner in which the subpoena was issued.

Subsequent to the trial court's order, the defense and prosecution moved for permission to seek interlocutory appeal which the trial court granted. On appeal to the intermediate appellate court, the Tennessee Court of Criminal Appeals the issues were honed to whether the State had standing to quash the subpoenas duces tecum issued to the witnesses, the court's ruling quashing those subpoenas, and the court's ruling that the State did not have standing to quash the subpoenas issued to the various service providers.

The Tennessee Court of Criminal Appeals applied the Seventh Circuit's Raineri test, United States v. Raineri, 670 F.2d 702, 712 (7th Cir. 1982), and determined that none of the interests identified in Raineri were implicated by the third-party subpoenas: First, because the subpoenas were issued prior to trial, there was no danger of undue lengthening of the trial; secondly, there was no evidence that suggested that the subpoenas issued to the witnesses caused “undue harassment” or that any of the witnesses were particularly vulnerable; thirdly, there was no evidence to suggest that the subpoenas would lead to a “prejudicial over-emphasis on [witness] credibility;” and, lastly, the subpoenas were not unreasonable or oppressive” as applied to the state.

Nevertheless, the appellate court reversed the trial court and found that the state failed to establish a legitimate interest in the subpoenas and therefore lacked standing to challenge the subpoenas issued to the witnesses. Further, the appellate court affirmed the trial court's ruling that the state did not have standing to challenge the subpoenas issued to the service providers. Nevertheless, in the interests of judicial economy and potential further appellate review, the court addressed the merits of each party's claim regarding the subpoenas, claims that have been frequently litigated nationwide in other cases.

The court emphasized that the decision to enforce a pretrial subpoena duces tecum is committed to the sound discretion of the trial court since the necessity for the subpoena most often turns upon a determination of factual issues. See Nixon, 418 U.S. at 702. The court found that based upon the facts developed by the trial court at the hearing the defendants failed to establish that pretrial production of the cellular telephone handsets was likely to produce relevant, admissible evidence. Further, that the scope of the subpoenas, that is, the times frames sought for the demanded information of the four witnesses for “every piece of both content-related and non-content-related electronic communications generated by the four witnesses for the 18 month period” prior to the issuance of the subpoenas lacked specificity and therefore was overly broad and should be limited to the period beginning the day of the party and the ending when the witnesses were cautioned by the KPD to avoid discussing the offenses on social media.

Further, the court found that as to the subpoenas on the social media providers, the SCA prohibits them from disclosing nonpublic contents without the user's consent. (See generally United States v. Warshak, 631 F.3d 266, 288 (6th Cir. 2010) (holding that “a subscriber enjoys a reasonable expectation of privacy in the contents of emails”); Crispin v. Christian Audiger, 717 F. Supp. 2d 965, 983 (2010) (private messages were immune from civil subpoena).) In analyzing the SCA, the court found that by definition, 18 U.S.C. 2703(d), no criminal defendant or party to a civil litigation could make the required showing under the SCA that (1) they qualify as a governmental entity and (2) that the subpoena and order issued satisfies 18 U.S.C. §2703(d). The court order exception thereof pertains only to the government and only upon the government demonstrating specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication are relevant and material to an ongoing criminal investigation. Cf., Facebook v. Superior Court, 240 Cal. App. 4th 203 (2015), opinion superseded on other grounds, 195 Cal Rep. 3d 789 (2015); People v. Q.H., 2016 Cal. App. Unpub LEXIS 7262.

Conclusion

In fending off a motion to quash, the defense seeking evidence from the state via a subpoena duces tecum must generally satisfy the threshold tests of relevancy, materiality and admissibility and not violate established discovery procedures. When the evidence sought by the defense is smart phone and social media account data of a state's witness, an additional hurdle is presented by the strictly interpreted privacy protections of the Stored Communications Act, and unless other exceptions are found to apply, that hurdle is not easily overcome. (To date, no reported case has determined that a defendant has met his burden that denying him access to SCA protected data at the pretrial stage of the proceedings discussed herein was of a constitutional dimension. See, e.g., Pennsylvania v. Ritchie, 480 U.S. 39 (1987); cf., Crispin v. Christian Audiger, 717 F. Supp. 2d 965 (C.D.Ca. 2010).)

Peter A. Crusco is Executive Assistant District Attorney, Investigations Division, Office of the Queens County District Attorney. The views expressed herein are the author's, and do not necessarily reflect the policies or views of the office.