Victim’s Computer Isn’t Per Se Immune From Subpoena

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By Lance J. Rogers

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.

Discovery in the Digital Age

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 rlarson@bna.com

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