NH: Court can’t force state to search sex case complainant’s cell phone as discovery

In a sex assault case, the trial court did not have the authority to compel the state to search the complainant’s cell phone for voice mails and text messages for the defense as a part of discovery. It’s not the state’s job to seek out all potentially exculpatory evidence for the defense that it doesn’t already possess. Petition of State (State v. Lewandowski), 2016 N.H. LEXIS 187 (Aug. 23, 2016):

The State argues that the trial court did not have the authority to grant the defendant’s proposed order “because defendant[s] in criminal proceedings have no general right to discovery and the State had discharged its obligations under Brady.” See Brady v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d 215 (1963). It further asserts that the court cannot “conscript the State to seize evidence it had never possessed for the defendant’s benefit.” The State explains that the trial court “effectively grant[ed] the defendant a search warrant and order[ed] the State to execute that warrant,” which, according to the State, “destroyed [the complainant’s] right to be free from unreasonable searches and seizures.” (Bolding omitted.) See U.S. Const. amends. IV, XIV; N.H. Const. pt. I, art. 19.

This issue concerning the scope of the trial court’s authority is one of first impression; thus, we rely upon cases from other jurisdictions to aid in our analysis. In State v. Haynie, 240 Ga. 866, 242 S.E.2d 713 (Ga. 1978), the Georgia Supreme Court held that the trial court could not, at the defendant’s request, issue an order, “requiring the removal of [a] bullet from the victim and the production of the gun, and that ballistic tests be made upon them.” Haynie, 242 S.E.2d at 713-14. In the concurring opinion, it was noted that the defendant “may not implement a search such as the official search of an arrestee” by the State; “he needs a vehicle for discovery.” Id. at 716 (Hall, J., concurring specially). It was further noted that the defendant could not acquire the bullet “from the victim for the simple reason that there [were] no procedures extant which would permit him to do so.” Id.

Subsequently, in Young v. State, 146 Ga. App. 167, 245 S.E.2d 866 (Ga. Ct. App. 1978), the Court of Appeals of Georgia, citing Haynie, affirmed the trial court’s rejection of the defendant’s “notice to produce seeking to obtain from the state certain evidence … in the possession of … third parties.” Young, 245 S.E.2d at 867. The court reasoned that “a defendant in a criminal case cannot make the office of the solicitor or district attorney its agent in ferreting out evidence which it does not possess and which would constitute a search and seizure of third persons involved only as victims of the crime.” Id.

Other courts have concluded more generally that criminal defendants do not have the power “to compel the State to gather in [their] behalf what might be exculpatory evidence.” State v. Reyna, 92 Idaho 669, 448 P.2d 762, 767 (Idaho 1968); see also People v. Roark, 643 P.2d 756, 767 (Colo. 1982) (citing Reyna, 448 P.2d at 767).

These cases stand for the general proposition, which we now adopt, that the trial court cannot compel the State to obtain evidence for the defendant. Here, the State did not possess the complainant’s cell phone and social media communications and cell phone service provider records. Thus, the court “acted illegally with respect to … [its] authority” when it granted the defendant’s proposed order requiring the State to obtain, preserve, and produce those records and communications for an in camera review. Petition of State of N.H. (State v. MacDonald), 162 N.H. at 66.

The defendant argues that “[t]here is a long line of cases” beginning with State v. Gagne, 136 N.H. 101, 612 A.2d 899 (1992), “that recognize the authority of the [t]rial [c]ourt to compel the production of potentially relevant and exculpatory evidence from a third party for its in camera review.” In Gagne, we set forth the process by which a defendant may obtain privileged information for use at trial. The defendant in Gagne sought access to, among other things, privileged counseling records in the possession of the New Hampshire Division for Children and Youth Services. Gagne, 136 N.H. at 102-03. We held that, if a defendant establishes “a reasonable probability that the records contain information that is material and relevant to his defense,” id. at 105, the court must review them in camera and remit to the defendant the records that are “essential and reasonably necessary” to that defense, id. at 106 (quotation omitted).