{"id":53134,"date":"2022-09-13T02:26:13","date_gmt":"2022-09-13T07:26:13","guid":{"rendered":"http:\/\/fourthamendment.com\/?p=53134"},"modified":"2022-09-13T09:05:11","modified_gmt":"2022-09-13T14:05:11","slug":"tx4-def-counsel-sought-access-to-complaining-witnesss-cell-phone-denied-for-lack-of-parental-participation","status":"publish","type":"post","link":"https:\/\/fourthamendment.com\/?p=53134","title":{"rendered":"TX4: Def counsel sought access to complaining witness’s cell phone; denied for lack of parental participation"},"content":{"rendered":"\n

The defense in a criminal case in its investigation sought access to the complainant\u2019s cell phone as a part of the defense investigation. Ordering production of the phone without input from the child\u2019s parents, however, was an abuse of discretion. Remanded. State ex rel. Wadsworth<\/a>, 2022 Tex. App. LEXIS 6640 (Tex. App. \u2013 San Antonio Aug. 31, 2022):<\/p>\n\n\n\n\n\n\n\n

We also recognize M.A.C.S.C. has an “interest in securing evidence that would be material and favorable to vindicating his due process rights.” In re State, 599 S.W.3d at 605. Finally, “we understand the frustrations of defense counsel in attempting to conduct investigations into their clients’ cases to meet the constitutional duty to provide effective assistance of counsel.” Id. at 603. “As with most competing rights, courts have to strike the right balance.” Id. at 605.<\/p>

The trial court did everything it could to balance the competing interests in this case. It did so, however, in the absence of the complainant’s parents, who were told by the State to not attend the hearing. As a result, the trial court was unable to fully strike the right balance, value the competing rights, or determine (1) the least intrusive means of obtaining the evidence or whether the evidence sought was available on the complainant’s phone or with a service provider, (2) whether there is any evidence of spoliation; and (3) if a forensic examination was needed, whether an agent of the State or M.A.C.S.C. should be given the custody and control of the phone, as opposed to a court appointed or agreed expert.<\/p>

Having concluded M.A.C.S.C. is entitled to the information he seeks, we nevertheless conclude that ordering the parents to turn over the phone and passwords for an in-camera inspection was an abuse of discretion at this stage of the proceedings based on the absence of any testimony by the complainant’s parents or, at the least, a conversation with them about the least intrusive method to obtain the information from their daughter’s phone.<\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"

The defense in a criminal case in its investigation sought access to the complainant\u2019s cell phone as a part of the defense investigation. Ordering production of the phone without input from the child\u2019s parents, however, was an abuse of discretion. … Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[5],"tags":[],"class_list":["post-53134","post","type-post","status-publish","format-standard","hentry","category-cell-phones"],"_links":{"self":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53134","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=53134"}],"version-history":[{"count":2,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53134\/revisions"}],"predecessor-version":[{"id":53147,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/53134\/revisions\/53147"}],"wp:attachment":[{"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=53134"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=53134"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=53134"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}