State v. Bray, 422 P.3d 250

Background

Victim J testified she used her computer in late February 2011 to search whether what happened to her "counted as rape," then "flattened" (wiped) the hard drive weeks later; she produced some journal entries to the prosecutor but did not bring the computer to trial.
Defendant subpoenaed J to appear at trial and to bring the computer (or a cloned hard drive), journal entries, and related storage devices; J did not produce the computer at trial.
Trial court initially ordered the district attorney to seek J's Google search records, but the SCA (and Google) treat such records as confidential; the district attorney issued a subpoena that Google rebuffed and refused to pursue further process; the court declined to compel the prosecutor to obtain a warrant or SCA order.
Defendant moved to compel production of J's computer or to dismiss for prosecutorial misconduct based on delay and noncompliance; the trial court denied both motions; Court of Appeals affirmed denial of dismissal but ordered enforcement of subpoena duces tecum for the computer; this Court granted review.
The Supreme Court held the trial court erred in refusing to enforce defendant's trial subpoena for J's computer and vacated convictions, remanding for forensic examination under protective conditions and further proceedings to determine whether a new trial is required.

Issues

Issue	Bray's Argument	State's Argument	Held
Whether due process or ORS 135.815/other law required the prosecutor or court to compel Google to produce J's internet searches	Court should compel prosecutor to obtain Google records (via warrant or SCA order) to secure potentially exculpatory evidence	SCA protects third‑party records; Ritchie only permits enforcement of a defendant's subpoena, not forcing a prosecutor to apply for process on defendant's behalf	Court: No due process right to force prosecutor to apply for additional process here; failure to require that did not deny a fair trial given alternatives and attenuated need
Whether trial court erred in denying motion to dismiss for prosecutorial misconduct for delay/noncompliance	State's delay in issuing subpoena caused loss of evidence and warrants dismissal	State eventually issued subpoena; defendant cannot show irretrievable loss caused by state delay or that Google would have complied earlier	Court: No error in denying dismissal; defendant failed to show evidence was irretrievably lost due to state conduct
Whether defendant was entitled under ORS 136.580 / Cartwright to compel J to produce her computer at trial for forensic inspection	Subpoena duces tecum was proper; computer could contain impeaching/exculpatory evidence and had potential use for cross‑examination	Forensic exam would invade J's privacy; defendant failed to show specificity, relevancy, admissibility required under Nixon/17(c) analog	Court: Under Cartwright/ORS 136.580, trial subpoena must be enforced unless material has "no potential use"; defendant met that threshold and the court erred in refusing to compel production; forensic exam may proceed under protective constraints
What remedy follows the court's refusal to enforce the subpoena	Vacate convictions and order new trial because missing impeaching material could be outcome‑determinative	State urged less drastic remedies or that error harmless	Court: Vacated convictions and remanded for forensic exam of computer with privacy protections; trial court to decide post‑exam whether new trial is necessary or convictions can be reinstated

Key Cases Cited

United States v. Agurs, 427 U.S. 97 (1976) (prosecution must disclose evidence favorable and material to guilt or punishment)
Brady v. Maryland, 373 U.S. 83 (1963) (due process requires disclosure of exculpatory evidence)
Pennsylvania v. Ritchie, 480 U.S. 39 (1987) (trial court may assist defendant in obtaining third‑party records where statutory disclosure mechanism and in camera review protect confidentiality)
United States v. Nixon, 418 U.S. 683 (1974) (scope of subpoena duces tecum and limits to prevent transforming subpoenas into discovery)
United States v. Valenzuela‑Bernal, 458 U.S. 858 (1982) (to prove due process violation from lost evidence, defendant must show materiality sufficient to prevent a fair trial)
California v. Trombetta, 467 U.S. 479 (1984) (remedies for governmental loss or destruction of potentially exculpatory evidence)
Arizona v. Youngblood, 488 U.S. 51 (1988) (governmental failure to preserve potentially useful evidence requires bad faith to establish due process violation)
State v. Cartwright, 336 Or. 408 (2004) (under ORS 136.580, trial subpoenas for materials must be enforced unless material has no potential use at trial)
State v. Mansor, 363 Or. 185 (2018) (privacy protections and limits for forensic searches of personal computers)
Wardius v. Oregon, 412 U.S. 470 (1973) (reciprocity principle in discovery rules; limited application)