Bloomberg Law’s® extensive network of reporters and editors helps subscribers to stay ahead of legal
Oct. 18 — A convicted rapist should’ve been granted limited access to the hard drive of his victim’s home computer, the Oregon Court of Appeals ruled Oct. 12 ( State v. Bray , Or. Ct. App., No. A153162, 10/12/16 ).
The decision makes clear that a victim’s privacy interest in digital data stored on computers, mobile phones and the like don’t automatically trump a criminal defendant’s statutory right to subpoena “books, papers or documents” that contain potentially exculpatory evidence.
Thomas Harry Bray argued that he was entitled to have a forensic expert examine the victim’s hard drive for evidence that she had surfed the internet looking for wealthy men whom she could hook up with and then falsely accuse of rape.
It would be a “towering triumph of form over substance” to rule that the digital evidence being sought here isn’t sufficiently analogous to books, papers or documents to fall within the ambit of the discovery statute, Or. Rev. Stat. § 136.580 , the court said in an opinion by Judge David Schuman.
The court noted that Bray wasn’t seeking unlimited access and that the trial judge’s concerns about privacy and confidentiality could be allayed by using a court-qualified neutral expert and then examining the material in camera. It suggested that, on remand, the volume of material could be pared down by use of tailored search terms or other technical tools.
Bray was convicted of sexually assaulting a woman he met through an online dating service.
The court rejected Bray’s argument that the state violated its constitutional duty to turn over exculpatory evidence when prosecutors refused to order Google to turn over the victim’s e-mail and internet searches from immediately before and after the attack.
“After an exhaustive search, we have found no authority for the proposition that the prosecution’s Brady obligation to disclose material exculpatory evidence extends to evidence in the hands of a private entity such as Google,” the court said.
Google refused to comply with Bray’s subpoena for those items, citing the Electronic Communications Privacy Act, 18 U.S.C. § 2702(a)(1).
Judges Joel DeVore and Christopher L. Garrett also sat on the panel.
Boise Matthews LLP is representing Bray. The Oregon Attorney General’s Office is representing the state.
To contact the reporter on this story: Lance J. Rogers in Washington at LRogers@bna.com
To contact the editor responsible for this story: C. Reilly Larson at email@example.com
Copyright © 2016 The Bureau of National Affairs, Inc. All Rights Reserved.
All Bloomberg BNA treatises are available on standing order, which ensures you will always receive the most current edition of the book or supplement of the title you have ordered from Bloomberg BNA’s book division. As soon as a new supplement or edition is published (usually annually) for a title you’ve previously purchased and requested to be placed on standing order, we’ll ship it to you to review for 30 days without any obligation. During this period, you can either (a) honor the invoice and receive a 5% discount (in addition to any other discounts you may qualify for) off the then-current price of the update, plus shipping and handling or (b) return the book(s), in which case, your invoice will be cancelled upon receipt of the book(s). Call us for a prepaid UPS label for your return. It’s as simple and easy as that. Most importantly, standing orders mean you will never have to worry about the timeliness of the information you’re relying on. And, you may discontinue standing orders at any time by contacting us at 1.800.960.1220 or by sending an email to firstname.lastname@example.org.
Put me on standing order at a 5% discount off list price of all future updates, in addition to any other discounts I may quality for. (Returnable within 30 days.)
Notify me when updates are available (No standing order will be created).
This Bloomberg BNA report is available on standing order, which ensures you will all receive the latest edition. This report is updated annually and we will send you the latest edition once it has been published. By signing up for standing order you will never have to worry about the timeliness of the information you need. And, you may discontinue standing orders at any time by contacting us at 1.800.372.1033, option 5, or by sending us an email to email@example.com.
Put me on standing order
Notify me when new releases are available (no standing order will be created)