TN: Defense can’t use state SDT to get access to witness’s stored communications under SCA

The State lacked standing to challenge the subpoenas issued to its witnesses and electronic communications service providers seeking cell phone and social media communications because it had no personal right, privilege, or proprietary interest in the electronic communications at issue, and because it lacked a sufficient legal relationship with any of the witnesses to allow it to assert the witnesses’ own interests in the subpoenaed material. Although nothing prevented defendants from obtaining the electronic communications via a subpoena issued under Tenn. R. Crim. P. 17 to the witnesses themselves, defendants failed to establish entitlement to the requested communications. Under the SCA, defendants could not obtain the contents of the electronic communications from any of the service providers via a Rule 17 subpoena duces tecum. State v. Johnson, 2017 Tenn. Crim. App. LEXIS 271 (April 12, 2017). [Note: This seems ripe for an equal protection challenge: if the state can get it for its case, why can’t the defense?]

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