State v. Bray, 383 P.3d 883

Background

Defendant (anesthesiologist) was convicted after a bench trial of multiple counts of rape, sodomy, strangulation, and assault; he appealed following denial of pretrial relief.
After the alleged incident, the victim J searched Google about whether what happened constituted rape; defendant subpoenaed Google records of J’s searches as potential impeachment/exculpatory evidence.
Google refused direct production citing the ECPA; the trial court initially ordered the state to obtain the data from Google and turn it over to defendant, but the state repeatedly failed to comply and delayed.
Defendant also subpoenaed J to bring her computer (or a cloned hard drive) for in camera forensic inspection; the trial court denied compelling J to produce the device pretrial; the Oregon Supreme Court later ordered J to turn over a clone post-verdict.
Defendant moved to dismiss for prosecutorial misconduct based on the state’s defiance/foot-dragging; the trial court denied dismissal.
On appeal this court: (1) rejected dismissal for misconduct; (2) held the trial court correctly denied compelling the prosecution to obtain Google data; and (3) held the trial court erred in denying an in camera inspection procedure and remanded for consideration under Zolin/Frease principles.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bray)	Held
Whether trial court erred in denying motion to dismiss for prosecutorial misconduct for state’s repeated noncompliance with court order	State argued delays/resistance did not prejudice fairness of trial and did not warrant dismissal	Bray argued state’s intentional defiance of court order deprived him of exculpatory evidence and required dismissal	Denied: misconduct was serious but did not compel dismissal; no abuse of discretion because the court concluded fairness of trial was not undermined
Whether ORS discovery/Brady required prosecution to obtain Google-held search data (nonparty) and turn it over	State: Google data not within prosecutor’s “possession or control” under ORS 135.815; ECPA makes disclosure discretionary; Brady doesn’t reach private-party records beyond prosecution team	Bray: Google could disclose to law enforcement under ECPA; reciprocal discovery/Brady require state to obtain and disclose the material	Denied: statutory and constitutional claims fail — data not directly obtainable by prosecutor; Brady does not extend to private-party (Google) records not in prosecution’s actual or constructive possession
Whether Wardius requires court to order production by prosecution when a statute (ECPA) allows disclosure to the state but not the defendant	State: Wardius is narrow and applies to nonreciprocal discovery rules that penalize defendants; ECPA differs and does not create that asymmetry here	Bray: ECPA permits disclosure to law enforcement; due process/reciprocity entitles him to equivalent access	Denied: Wardius not applicable/expandable to compel state to procure private-party records where prosecution never obtained them; no authority to broaden Wardius here
Whether trial court erred in denying defendant’s motion to compel J to produce her computer (or a clone) for in camera forensic review	State: compelling production would violate J’s privacy and raise Fourth Amendment/state privacy concerns; protective order may be inadequate	Bray: subpoena statutes and Sixth Amendment/compulsory process permit compelling relevant evidence; proposed protective order and in camera review would limit intrusion	Granted in part/remanded: court erred by not applying the two-step in camera-review framework (threshold showing + discretionary Zolin factors); remand for in camera review under appropriate procedures (neutral or court‑qualified examiner, protective order, volume-limiting techniques)

Key Cases Cited

Brady v. Maryland, 373 U.S. 83 (1963) (prosecution must disclose material, exculpatory evidence favorable to accused)
Kyles v. Whitley, 514 U.S. 419 (1995) (Brady materiality standard: "reasonable probability" that result would differ)
Wardius v. Oregon, 412 U.S. 470 (1973) (Due Process forbids enforcement of nonreciprocal discovery rules that disadvantage defendants)
Zolin v. United States, 491 U.S. 554 (1989) (framework for in camera review where privileged/confidential material may be subject to exception)
United States v. Nixon, 418 U.S. 683 (1974) (compelling production by subpoena for fair administration of criminal justice; limits on privilege/privacy claims)
State v. Cartwright, 336 Or. 408 (2004) (statutory right to subpoena and distinction between ordinary subpoena duces tecum and early-production subpoenas)
State v. Wixom, 275 Or. App. 824 (2015) (interpretation of "control" under ORS discovery statutes; material obtainable only through intermediate nonprosecutorial agency not in prosecution's control)
State v. Daniels, 261 Or. App. 519 (2013) (prosecutorial "control" requires material be obtainable from entities required to disclose to prosecutor)
Frease v. Glazer, 330 Or. 364 (2000) (adopting Zolin two-step approach for in camera review of potentially privileged/confidential materials)