Can the State obtain a victim’s cell phone records and texts and then only turn over part of the final report to a defendant in discovery?

Issue:  In this case the state seemed a victims cell phone and conducted a forensic download of all the victim’s texts from the night before a sexual assault. The state obtained a full list of all texts on the phone from September 10, 2015, to September 28, 2015, along with a log of O.R.’s calls from September 15, 2015, to September 28, 2015but only turn over in discovery part of the texts and report from the computer analysis. The defendant filed a motion to obtain all the texts from the victim to anyone on the night of the assault.

Submitted by New Jersey Sex Crime Lawyer, Jeffrey Hark.


O.R. and defendant were friends, and on September 15, 2015, were talking while lying on defendant’s bed. O.R. had smoked marijuana earlier that evening, was tired, and fell asleep. She awakened sometime later to find defendant, naked, on top of her. He had pulled down her leggings, and she felt moisture between her legs. O.R. told defendant to get off, and, at her request, he drove her home. That morning, O.R. went to a nearby hospital where a rape kit was completed. Police were notified, and a complaint was filed against defendant.

As is customary for the Essex County Prosecutor’s office, on September 28, 2015, investigators requested that O.R. turn over her cell phone. The following day, the department compiled a 242-page extraction report. Defendant was charged by way of superseding indictment with two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(7), and two counts of second-degree sexual assault, N.J.S.A. 2C:14-2(c)(1). After motion practice and corresponding emergent applications for leave to appeal, the trial judge eventually ruled that defendant’s need for the unredacted extraction report outweighed O.R.’s privacy rights and ordered that the document be produced.

The extraction report included a call log from September 15, 2015, through September 28, 2015, consisting of 500 incoming and outgoing calls in reverse chronological order.

Legal issues: can the state read the texts but only give the defendant part of the text report?

Our premise that the contents of O.R.’s cell phone, including text messages and the call log, are entitled to the same privacy protection as letters, or personal calls, or a diary, is drawn from well-established precedents, beginning with Riley v. California, 134 S. Ct. 2473 (2014). In Riley, police conducted an unauthorized examination of Riley’s cell phone, including a wholesale search for evidence of gang activities. Id. at 2481. The Court reversed the denial of Riley’s motion to suppress the evidence, employing classic Fourth Amendment doctrine—that a search requires a warrant except where “it falls within a specific exception.” Id. at 2482. The Court reasoned that the search incident to arrest doctrine should not be applied to the contents of modern cell phones, “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.” Id. at 2484.

The Court observed that cell phones contain a treasure trove of personal information regarding the most intimate details of the owner’s life. Ibid. As the Court also observed, quoting a 1926 opinion authored by Learned Hand, it is a “totally different thing to search a man’s pockets and use against him what they contain, from ransacking his house for everything which may incriminate him.” Id. at 2490-91 (quoting United States v. Kirschenblatt, 16 F.2d 202, 203 (2d Cir. 1926)). A search of a cell phone would not only reveal “many sensitive records previously found in the home[,]” but also “a broad array of private information never found in a home in any form .

Now these legal issues are focused on a defendant, but this case deals with a victim!

A victim has the same interest in keeping the highly personal information found in a cell phone out of sight of the public in general and those she has accused of committing a crime against her in particular. The State contends that providing defendant with the unredacted extraction report would be like allowing defendant to ransack the victim’s house for everything it may contain that could be used by defendant in building a defense. The nature of the charge—a sexual assault—only heightens the tension between defendant’s right to open file discovery and his Sixth Amendment right to counsel, and O.R.’s right to privacy. See State v. Scoles, 214 N.J. 236, 253-54 (2013). Typically, because of the nature of the crime, sexual assault cases are treated with heightened sensitivity, such as the use of initials to protect the complainant’s identity.

Additionally, the Victim’s Rights Amendment to the New Jersey Constitution is implicated and establishes a baseline. Victims in our system “shall be treated with fairness, compassion and respect by the criminal justice system.” N.J. Const. art. 1, § 22. By statute and the Crime Victim’s Bill of Rights, victims are entitled “[t]o be treated with dignity and compassion by the criminal justice system[,]” and “[t]o be free from intimidation[.]” N.J.S.A. 52:4B-36.

Those rights require particular attention in sexual assault cases where there is a heightened “need to protect victims and witnesses from emotional trauma, embarrassment, and intimidation.” State v. Gilchrist, 381 N.J. Super. 138, 147 (App. Div. 2005). But victims’ rights do not “diminish those rights possessed by the accused facing a criminal prosecution.” State ex rel. A.B., 219 N.J. 542, 558 (2014). To harmonize those rights when a discovery request does not neatly fall into the automatic discovery rule requires balancing the right to a fair trial against a victim’s right to privacy. Id. at 547. A defendant must demonstrate that the discovery is “justified” and meets an evidentiary burden on a sliding scale “in direct proportion to the nature and extent of the intrusion.” Id. at 556- 57.

And so there must be a balance between the victim’s right to privacy and the defendant’s right to discovery and to confront his accuser.  The defendant’s 6th amendment confrontation rights entitle him to see all the background evidence in this case based on a balancing of the factors test.  Also, the court examined the trial judge’s decision and exercise of his/her discretion under an ‘abuse of discretion’ standard.  The court goes on…” That balance must be made against the backdrop that appellate courts “accord substantial deference to a trial court’s issuance of a discovery order and will not interfere with such an order absent an abuse of discretion.” State v. Hernandez, 225 N.J. 451, 461 (2016). We do not defer, however, if the discovery order is based on a mistaken understanding of the applicable law, including the trial court’s interpretation of a court rule. Ibid. As always, we review issues of law de novo. See ibid. New Jersey courts “do not countenance trial by surprise.” A.B., 219 N.J. at 555. “Because of the meaningful role that the disclosure of evidence to a defendant has in promoting the search for truth, pretrial discovery in criminal trials has long received favorable treatment in this state.” Scoles, 214 N.J. at 251. A trial in which a criminal defendant “does not have ‘access to the raw materials integral to the building of an effective defense’ is fundamentally unfair.” A.B., 219 N.J. at 556 (quoting Ake v. Oklahoma, 470 U.S. 68, 77 (1985)). Thus, to “advance the goal of providing fair and just criminal trials[,]” New Jersey has adopted an “open-file approach to pretrial discovery in criminal matters. Hernandez, 225 N.J. at 461-62 (quoting Scoles, 214 N.J. at 252); R. 3:13-3.

Rule 3:13-3(b) requires the State to provide “exculpatory material” to the accused including, but not limited to: books, papers, documents, or copies thereof, or tangible objects, buildings or places which are within the possession, custody or control of the prosecutor, including, but not limited to, writings, drawings, graphs, charts, photographs, video and sound recordings, images, electronically stored information, and any other data or data compilations stored in any medium from which information can be obtained and translated, if necessary, into reasonably usable form[.] [R. 3:13-3(b)(1)(E).]

In addition, “courts are empowered to order discovery beyond that mandated by our court rules when doing so will further the truth-seeking function or ensure the fairness of a trial.” Hernandez, 225 N.J. at 463 (quoting A.B., 219 N.J. at 560). “Relevance is the touchstone of discovery.” Id. at 468. Thus, “discovery in a criminal case ‘is appropriate if it will lead to relevant’ information.” Id. at 462 (quoting State v. Ballard, 331 N.J. Super. 529, 538 (App. Div. 2000)). Evidence is relevant if it has “a tendency in reason to prove or disprove any fact of consequence to the determination of the action.” N.J.R.E. 401. “[I]f evidence is relevant and necessary to a fair determination of the issues, the admission of the evidence is constitutionally compelled.” State v. Garron, 177 N.J. 147, 171 (2003). While criminal discovery in New Jersey is expansive, nothing “sanction[s] rummaging through irrelevant evidence.” Hernandez, 225 N.J. at 463. A defendant may not “transform the discovery process into an unfocused, haphazard search for evidence.” State v. D.R.H., 127 N.J. 249, 256 (1992). Courts must be cognizant of “the chilling and inhibiting effect that discovery can have on material witnesses who are subjected to intimidation, harassment, or embarrassment.” Ibid.

The showing a defendant must make increases with the nature of the intrusion resulting from the discovery. In this case, a heightened showing must be made in order to justify the intrusion into O.R.’s right to privacy. This showing is not as great as, for example, when a defendant seeks to have a child medically examined who is a sex abuse victim. See A.B. 219 N.J. at 557. But a defendant must show at least a substantial need. In other words, defendant must establish that the intrusion is warranted because the information will lead to relevant evidence on a material issue.

Here, after our in camera review of the unredacted extraction report, we are convinced it may well lead to relevant information. O.R. said the sexual assault occurred during the late night hours of September 15 or early morning hours of September 16, 2015, after she fell asleep. Defendant claims that they had a consensual encounter, and further alleges that O.R. fabricated the sexual assault claim because she feared “Bae” would find out they had relations. It is almost self-evident that texts O.R. sent and calls she made within the immediate hours before and after the assault may be relevant, and that defendant may wish to interview those persons with whom she made contact. The State is obligated in discovery to provide “‘material evidence affecting [the] credibility’ of a State’s witness whose testimony may be determinative of guilt or innocence.” Hernandez, 225 N.J. at 462 (alteration in original) (quoting State v. Carter, 69 N.J. 420, 433 (1976)). O.R. is the key State’s witness whose testimony, if believed, will determine the verdict. The State redacted numerous texts, some of which could offer defendant lines of investigation into O.R.’s credibility. We offer no examples of the unredacted materials for the reason stated at the beginning of this decision, but enumerate the rules and statutes that similarly situated defendants frequently raise: N.J.R.E. 404(a)(2), which provides that “[e]vidence of a pertinent trait of character of the victim offered by an accused” is admissible to show that the victim acted in conformity therewith; N.J.R.E. 608(a), which provides that opinion and reputation evidence is admissible to attack the character of a witness for untruthfulness; and the Rape Shield Law, N.J.S.A. 2C:14-7. Even if the cell phone information or the results of any further investigation based upon it may ultimately be inadmissible, full and open discovery requires the production of the unredacted report.

The State relies heavily upon State v. J.A.C., 210 N.J. 281 (2012), in support of its position that the redacted information suffices. In that case, however, the dispute related to the admission of evidence barred by the Rape Shield Law, not its production in discovery. See id. at 287. In this case, the State is seeking to keep defendant from having access to the redacted information altogether. The redacted material, however, is relevant and is therefore at least discoverable. The admissibility of any evidence, also left to the trial court, is an entirely different matter. Our decision does not touch upon that exercise of discretion. See id. at 295-96.

In conclusion, the trial court required the state to turn over the historical text information only to counsel. The prior texts of the victim which contain other third party person’s texts shall not be seen by the defendant with the exception of those to be used at the time of the trial.  The order only allowed the entire text report to be seen by the attorneys.

The court reasoned: “Knowing the risks attendant to compelling the State to produce the report, however, it shall be disclosed to defense counsel, counsel’s investigators, and defendant only. The discovery order must prohibit dissemination of the information except as necessary for investigation. Defendant shall not be given a hard copy of the unredacted report. He can review it with his counsel, but there is no need for him to have a physical record of phone numbers O.R. called or texts she sent. He is barred from discussing the contents of the report with anyone other than his attorney or attorney’s staff. Other than those permitted discussions, defendant is also barred from disclosing or disseminating the report’s contents in any fashion, including emails or internet postings. The State also asserts that the disclosure of the unredacted extraction report will infringe upon the privacy rights of third parties who were not involved in the incident and could not have anticipated disclosure of their communications with O.R. Our Court has been sensitive regarding the privacy rights of third parties when discovery, including their information, must be produced. State v. Stein, 225 N.J. 582, 597 (2016). But Stein did not consider whether being contacted by a defense investigator infringes upon a third party’s right to privacy. The issue was whether the State had to turn over police station videotapes of defendant that depicted others whose presence was irrelevant to the proceedings. Id. at 597.

In this case, there is no other practical means for the defense to investigate anything regarding O.R.’s communications with third parties related to the sexual assault without the State at least disclosing their identities. Weighing the privacy interest of third parties against the defendant’s right to investigate in preparation for trial, defendant’s trial preparation interest is paramount. This is no different than if, for example, O.R. had named persons with whom she discussed the incident. Those persons also lose their anonymity. Thus, we conclude that our strong open-file discovery precedents justify the trial court’s resolution of this issue and the decision is therefore entitled to deference. See Hernandez, 225 N.J. at 461.

We reiterate that copies of the unredacted extraction report shall be supplied only to defense counsel and counsel’s staff. No copy shall be provided to defendant, who is also barred from discussing its contents with anyone other than counsel or counsel’s investigator. This limitation applies only to material not admitted as evidence at trial, as obviously the public nature of the proceeding makes the limitation unnecessary as to trial information.

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Criminal Civil Lawyer

Jeffrey Hark is a New Jersey Civil and Criminal Lawyer.

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