STATE OF OREGON, Petitioner on Review, v. THOMAS HARRY BRAY, Respondent on Review. STATE OF OREGON, Respondent on Review, v. THOMAS HARRY BRAY, Petitioner on Review.
S064843 (Control); S064846; (CC 11FE1078) (CA A153162)
In the Supreme Court of the State of Oregon
July 5, 2018
Argued and submitted November 7, 2017
363 Or 226 | 422 P3d 250
On review from the Court of Appeals.*
Jennifer S. Lloyd, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review/respondent on review State of Oregon. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Kendra M. Matthews, Boise Matthews LLP, Portland, argued the cause and filed the briefs for petitioner on review/respondent on review Thomas Harry Bray.
Erin K. Olson, Law Office of Erin K. Olson, Portland, filed the brief on behalf of amicus curiae the National Center for Victims of Crime. Margaret Garvin, National Crime Victim Law Institute at Lewis & Clark Law School, Portland, filed the brief on behalf of amicus curiae National Crime Victim Law Institute. Also on the brief was Amy C. Liu. Rosemary W. Brewer, Oregon Crime Victims Law Center, Portland, filed the brief on behalf of amici curiae Crime Victim J.B. and the Oregon Crime Victims Law Center.
Before Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn, Duncan, and Nelson, Justices.**
WALTERS, C. J.
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is vacated, and the case is remanded to the circuit court for further proceedings.
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In this criminal case, the factual issue at trial was whether, as the state contended, defendant forcibly raped, sodomized, strangled and assaulted J, or, as defendant claimed, J‘s injuries resulted from consensual “rough sex.” A preliminary legal issue was whether defendant could compel the production of evidence that he viewed as supportive of his position. After the encounter with defendant, J had used her computer to conduct a Google search and make journal entries about defendant and the encounter. Defendant sought to compel the production of that digital data: Defendant filed a motion to compel the state to use its authority under the federal Stored Communications Act (the SCA) to obtain J‘s records from Google, and he issued a subpoena duces tecum requiring J to appear at trial and bring her computer with her.
The trial court granted defendant‘s motion to compel, and, after some time and a number of hearings, the state eventually sent Google a subpoena for the records. Google did not comply; it took the position that a search warrant was required. Defendant, frustrated with what he viewed as the state‘s defiance of the court‘s order and refusal to do what was necessary to get the Google information, filed a motion to dismiss the charges against him. The court, unhappy with the state‘s delay and “resistance or reluctance” to comply with its order, but satisfied that the state had done all that the court could direct it to do, informed the parties that it would not require the state to obtain a search warrant and denied defendant‘s motion to dismiss.
The court then conducted a bench trial. J testified, but she did not produce her computer in response to defendant‘s subpoena. On cross-examination, J told the court that she had “flattened” her computer and that it therefore no longer contained digital information. The court denied defendant‘s motion for an order requiring J to bring the computer to court for a forensic examination and, at the trial‘s completion, found defendant guilty.
Defendant appealed his judgment of conviction. State v. Bray, 281 Or App 584, 586, 383 P3d 883 (2016).
Defendant filed a petition for review in this court, challenging the Court of Appeals’ rulings with respect to the Google records and the state‘s failure to obtain them. The state also filed a petition for review, challenging the Court of Appeals’ ruling with respect to defendant‘s subpoena and its conclusion that defendant‘s convictions must be vacated and the case remanded. We allowed both petitions, and, for the reasons that follow, we affirm the decision of the Court of Appeals.
I. DEFENDANT‘S ISSUES ON REVIEW
A. Whether the trial court erred in refusing to order the state to take further action to obtain J‘s internet information from Google
We begin with the issues that defendant raises on review and, in particular, his argument that the trial court erred in refusing to order the state to take further action to obtain J‘s internet information from Google. To address that issue, a rudimentary understanding of the provisions of the SCA is necessary.
The SCA is a federal law that was enacted in 1986 as part of the Electronic Communications Privacy Act to address the privacy of stored internet communications. See Orin S. Kerr, A User‘s Guide to the Stored Communications Act, and a Legislator‘s Guide to Amending It, 72 Geo Wash L Rev 1208, 1208-13 (2004) (discussing purpose of the SCA). In simplified terms and subject to exceptions, section 2702 of the SCA prohibits providers of remote computing service, such as Google, from knowingly divulging to any person or entity the contents of any communication carried
When defendant began his efforts to obtain J‘s Google records, he was apparently unaware of the SCA and its privacy protections. Defendant sent his own subpoena duces tecum to Google, but Google refused to honor it, citing the SCA. Defendant then sought the court‘s assistance. Defendant argued that, although Google had rebuffed his subpoena for the records of J‘s search, it would be required to produce that information if the state sought it. Defendant filed a motion to compel, asking the court to order the state to do what he could not. On December 20, 2011, after a hearing, the court determined that J‘s Google searches were potentially exculpatory and ordered the state to “make whatever effort the federal statute allows them to make” to obtain them (December 20 order). The court‘s thinking was that the state “has little interest in ignoring or avoiding exculpatory evidence” which might affect the result in the case, and that it was appropriate “for this court to order the State of Oregon to use its power under [the] federal statute to obtain the information.”
After significant delay, the state issued its own subpoena.3 Google again demurred. Google informed the state
When defendant did in fact file a motion to dismiss, the trial court denied it, giving two interrelated reasons for its decision. First, the court explained, the state may have done all that the court could require it to do when it issued a subpoena for J‘s Google records. Although the court disagreed with the district attorney‘s position that, to apply for a search warrant, he would have to aver that he had probable cause to believe that a search would produce “evidence of a crime“—explaining that “a search warrant can be issued for evidence or information concerning the commission of a crime“—the court was not convinced that it could order the district attorney to make averments that he was not willing to make.
Second, the court explained, it considered the Google searches to be important and exculpatory, but it did not consider them to be the “heart of the case.” The “heart of the case,” in the court‘s view, was the “physical evidence, [J]‘s statements to the police, [J]‘s testimony, which is subject to cross-examination, and * * * defendant‘s testimony or other evidence if he chooses to testify or present it.” Moreover,
On appeal, the Court of Appeals described the trial court‘s decision as a combination of rulings, including a denial of defendant‘s “motion to compel the state to obtain J‘s internet information.” Bray, 281 Or App at 595. As noted, the Court of Appeals affirmed that denial. Id. The court reasoned that ordering the state to obtain J‘s Google searches would exceed the court‘s statutory and constitutional authority, and it did not distinguish between the trial court‘s initial order requiring the state to take steps permitted by the SCA and the trial court‘s later retreat from that order. Id. at 595-607 (discussing motion to compel Google information issue).
That distinction is, however, essential to our analysis. The trial court effectively entered two different orders with respect to the Google searches—an initial order granting defendant‘s motion to compel, and a second order, reconsidering, retreating from, or reversing that initial order. The state did not challenge the court‘s initial order by seeking a writ of mandamus or by cross-assigning it as error on appeal to the Court of Appeals. On review in this court, it is defendant who brings a challenge, and that challenge is not to the court‘s initial order, but to its retreat from it. Thus, the issue before us is not whether the trial court had authority to enter its December 20 order; the issue is whether the trial court had an obligation to enforce that order by requiring the state to take further action deemed necessary to obtain the Google records—to apply for a search warrant or an SCA order.4
The Court of Appeals considered
This court construed that statute in State v. Warren, 304 Or 428, 746 P2d 711 (1987).6 In that case, the defendant made a motion to compel Children‘s Services Division (CSD) to disclose witness statements that were included in CSD files. Id. at 430. The trial court denied the motion, but this court held that
From Warren, defendant argues that any information that a prosecutor may obtain directly is within the prosecutor‘s “control,” as that term is used in
The parties’ arguments hinge on the meaning of the statutory term “control.” The relevant definition of that term set out in Webster‘s Dictionary is “to have power over : rule.” Webster‘s Third New Int‘l Dictionary 496 (unabridged ed 2002). Given that definition, we do not agree with either party‘s argument in toto. We do not agree with the state that it does not have control over documents held by third parties lacking statutorily imposed investigative duties. When the state has the authority to obtain documents in the hands of third parties on request, it has the power to obtain those documents on its own volition and without other outside assistance and thereby has “control” over them; that is true even if those third parties do not themselves have investigatory responsibilities. Under Warren, the state may obtain such documents “directly” and, at least when a defendant makes a specific request for them, must obtain and disclose
In this case, the SCA makes internet information confidential and does not permit Google to disclose it to district attorneys on request. Issuance of process, such as a subpoena, search warrant, or SCA order, is required.9 Therefore, in this case,
Defendant‘s next argument is that, even if
From Ritchie, defendant argues that due process requires a court to assist a defendant in obtaining potentially exculpatory evidence, including by requiring a prosecutor to employ legal process to obtain such material. The state responds that Ritchie may require a court to enforce a defendant‘s subpoena, but it does not require or permit a court to compel a prosecutor to issue process to obtain evidence that is held by a third party and that the prosecutor has no constitutional duty to produce.
We agree that, on its facts, Ritchie does not go as far as defendant suggests. In Ritchie, the Supreme Court ordered the trial court to assist the defendant by enforcing his own subpoena. But that does not mean that due process and the right to adduce evidence necessary to a fair trial
In this case, the trial court issued an order requiring the district attorney to take action permitted by the SCA to obtain J‘s internet searches, and the validity of that order is not before us. As noted, the state did not seek a writ of mandamus contesting the order, and the district attorney responded by issuing a subpoena that Google rebuffed. The question before us is whether, when defendant sought the court‘s assistance in compelling the district attorney to take further action, such as applying to the court for a search warrant or an SCA order, due process required the court to provide that particular assistance. It did not. Although the internet searches may have been sufficiently important and exculpatory to justify the trial court‘s initial order, there are two reasons that, together, persuade us that the need for the evidence was not so great that the court‘s failure to order the district attorney to issue process to Google deprived him of a fair trial. First, even if defendant could not prove the precise search terms that J used to search the internet without the searches themselves, he could prove that J had consulted the internet to determine whether what happened to her counted as rape. And second, issuance of process to Google was not the only means available to defendant to obtain evidence of the searches that J conducted. As more fully discussed below, J‘s computer may contain that evidence. Given those alternative means of informing the jury that J may have had doubts about whether she had been raped, we are not convinced that the Supreme Court would hold that the trial court‘s failure to order the district attorney to issue process to obtain that information from Google constituted a due process violation. The Court has been clear that, to prove a due process violation based on a deprivation of evidence, a defendant must demonstrate that the loss of evidence was so material and favorable that it prevented a fair
B. Whether the trial court erred in denying defendant‘s motion to dismiss for prosecutorial misconduct
For the reasons that follow, we also conclude that the trial court did not err in denying defendant‘s motion to dismiss for prosecutorial misconduct. Defendant based his motion on a series of facts more fully described in the Court of Appeals’ opinion in this case. Bray, 281 Or App at 592-94.11 Those facts demonstrate that the state did not respond to the trial court‘s December 20 order by promptly issuing a subpoena to Google. It took the state months to do so, and, when Google found the subpoena insufficient, it took the state weeks to so inform defendant and the court. By that time, trial was quickly drawing near, and the trial court was clearly perturbed by the state‘s delays. The trial court described the state‘s conduct as “foot-dragging and delay and resistance or reluctance * * * to comply.” Yet, the court reasoned, the state eventually had done all that the trial court believed it could require, and defendant could establish that J conducted an internet search to determine whether what
The Court of Appeals used stronger terms to describe the state‘s conduct. It characterized the state‘s behavior as “seriously disturbing” and as “repeated, intentional and conceded defiance of a court order” that “is nothing short of an attack on the judicial system itself.” Bray, 281 Or App at 594. Yet, like the trial court, the Court of Appeals also reached the conclusion that dismissal was not warranted. Id. The Court of Appeals reasoned that, because the trial court “ultimately ruled that it had no authority to issue the order that the state defied,” that defiance had, in the final analysis, “no impact on the ultimate fairness of defendant‘s trial.” Id. at 595.
We understand the trial court‘s ruling a bit differently—not as a determination that the court lacked authority to issue its December 20 order, but as a determination not to require the state to take further steps to comply with that order. We therefore assume that the trial court had authority to enter its December 20 order and consider whether, given the state‘s resistance to or defiance of that order, the trial court erred in denying defendant‘s motion to dismiss.
To answer that question, we must focus with particularity on the conduct at issue: the state‘s failure to promptly issue a subpoena to Google for J‘s internet searches. As explained above, this is not a case in which the state withheld material information that was in its possession or control, a due process violation that requires production of the information and a new trial. Rather, this is a case in which the state failed to take court-ordered action to obtain information that a third party—Google—may once have had but no longer retains.12 Consequently, defendant contends that the state‘s conduct in this case is comparable to the state‘s conduct in cases in which the state deliberately destroyed or failed to preserve evidence that is irretrievably lost. In such circumstances, defendant contends, citing California v. Trombetta, 467 US 479, 104 S Ct 2528, 81 L Ed 2d 413
In Trombetta, the Court discussed “‘what might loosely be called the area of constitutionally guaranteed access to evidence,‘” id. at 485 (quoting Valenzuela-Bernal, 458 US at 867), and the “troubling choices” available to a court that must fashion remedies when potentially exculpatory evidence is permanently lost, id. at 486-87. The Court‘s discussion referenced cases in which the state was responsible for irretrievable loss, whether by destroying evidence or by failing to take affirmative steps to preserve it. Id. Other cases that defendant cites also present similar facts. See Arizona v. Youngblood, 488 US 51, 58, 109 S Ct 333, 102 L Ed 2d 281 (1988) (police responsible for failing to refrigerate semen samples from victim‘s body and clothing); Miller v. Vasquez, 868 F2d 1116, 1119 (9th Cir 1989) (investigating officer responsible for failing to collect the victim‘s bloodstained jacket and photograph the defendant‘s scratched arms); State v. Faunce, 251 Or App 58, 63, 282 P3d 960 (2012) (police responsible for returning pistol to a suspect). This case is different. At this point, defendant has not demonstrated either that J‘s digital data is irretrievably lost or that the state‘s delay in subpoenaing that data caused its loss.
As we explain below, there still is a possibility that defendant will be able to obtain J‘s internet searches from her computer. Below, we conclude that the trial court erred in refusing to enforce defendant‘s subpoena of that computer and remand to that court to determine whether to grant a new trial. It is possible that J‘s computer will contain evidence of J‘s internet searches and that defendant will be able to obtain and use that evidence.
In addition, even if J‘s internet searches are irretrievably lost, defendant has not demonstrated that the state‘s delay in issuing its subpoena caused that loss. In response to the state‘s subpoena, Google refused to disclose J‘s internet searches, taking the position that only a search warrant would suffice. Defendant did not establish that, had the state acted more promptly, Google would have produced the requested searches. Thus, defendant has not established that the state‘s conduct, no matter how egregious, resulted
We therefore conclude that the trial court did not err in denying defendant‘s motion to dismiss for prosecutorial misconduct and turn to the state‘s petition for review and the issue on which the potential for a new trial pivots—whether the trial court erred in denying defendant‘s motion to compel J to produce her computer at trial.
II. THE STATE‘S ISSUE ON REVIEW
Defendant served J with a subpoena requiring her to “appear before the Circuit Court” on the date and at the time of the trial “to give evidence in the above-entitled matter on behalf of the defendant,” and to bring with her to court:
“1. The computer or its cloned hard drive copy that [J] used on February 26, 2011 to perform an internet search;
“2. Any and all writings, journal entries, or diary entries that [J] created regarding [defendant] or the allegations associated with this case from 2/22/11 until the present date; and,
“3. Any external storage devices containing data from items 1 & 2.”
J did not comply. She appeared and testified, but told the court that she had not brought her computer with her.14
At the conclusion of J‘s testimony, the court considered defendant‘s motion to compel J to bring her computer to court. Defendant told the court that even a “flattened” computer could disclose the contents of J‘s Google search and any journal entries that she had created. Defendant added that the computer might contain data that could contradict J‘s testimony about the timing of her efforts to “flatten” the hard drive and disclose whether J had made those efforts after he had attempted to obtain her internet records from Google. Defendant offered the services of a forensic examiner who could decipher the computer‘s digital information and provide relevant data to the court for in camera inspection. In opposition, the state argued that enforcing the subpoena would violate J‘s constitutional right to privacy; it also suggested that defendant had not sufficiently demonstrated that the computer would provide admissible impeaching evidence.
The trial court was not troubled by defendant‘s failure to more particularly describe the evidence that he sought or to demonstrate its admissibility more conclusively. When the state told the trial court that, “[i]n order for a prior inconsistent statement to be admissible at trial, it must be inconsistent, and [not] just speculation as to whether it‘s inconsistent,” the court interrupted. The court told counsel that that argument was directly contrary to this court‘s decision in State v. Cartwright, 336 Or 408, 420, 85 P3d 305 (2004), requiring production of statements that potentially could be used in cross-examination. The trial court was troubled, however, by the privacy concerns that the state raised. The court was concerned that a forensic examiner would have access to private information and denied defendant‘s motion to compel.
The Court of Appeals began its analysis with a review of the controlling Oregon statutes. Bray, 281 Or App at 609.
“(1) If books, papers or documents are required, a direction to the following effect shall be added to the form provided in
ORS 136.575 : ‘And you are required, also, to bring with you the following: (describing intelligibly the books, papers or documents required).’“(2) Upon the motion of the state or the defendant, the court may direct that the books, papers or documents described in the subpoena be produced before the court prior to the trial or prior to the time when the books, papers or documents are to be offered in evidence and may, upon production, permit the books, papers or documents to be inspected and copied by the state or the defendant and the state‘s or the defendant‘s attorneys.”
The Court of Appeals relied on Cartwright for the proposition that
On review in this court, the state assumes that the digital data that defendant seeks is equivalent to other documentary material that can be obtained by a subpoena duces tecum under
We agree with defendant that the state‘s argument has evolved. In the trial court and the Court of Appeals, the state focused its objection to enforcement of defendant‘s subpoena on the invasion of privacy that it contended would occur if forensic examination were permitted. In this court, the state focuses, instead, on the invasion of privacy that it contends will occur because defendant has not established a sufficient justification for that examination; defendant has not made a sufficient showing under
Evolution of argument from the pressures of trial to reflection on review is not uncommon. Over time, parties carefully scrutinize their positions, and we benefit when they forthrightly put aside the weaker in favor of the stronger. Read too restrictively to preclude us from considering parties’ later, more refined arguments, our preservation rule could preclude us from considering the parties’ best arguments or answering pressing questions as completely as we might like. On the other hand, our role is to decide disputes that were presented below, and our preservation rule serves important principles—procedural fairness to the parties and the trial court, judicial economy, and full development of the record. See Peeples v. Lampert, 345 Or 209, 219-21, 191 P3d 637 (2008) (discussing and reaffirming the importance of the preservation rule). “Ultimately, the preservation rule is a practical one, and close calls—like this one—inevitably will turn on whether, given the particular record of a case, the court concludes that the policies underlying the rule have been sufficiently served.” State v. Parkins, 346 Or 333, 341, 211 P3d 262 (2009).
Here, we conclude that the state raised, at least in a general sense, in both the trial court and the Court of Appeals, the issue of what is necessary for a subpoena
As to J‘s internet searches, the state argues that defendant did not demonstrate that those searches necessarily would disclose evidence that would impeach J‘s trial testimony and therefore be relevant and admissible. As to journal entries about “defendant or the rape,” the state argues that defendant‘s request was too broad and that defendant did not show that the computer ever had contained any relevant and admissible entries: Any such entries would be inadmissible hearsay in defendant‘s case-in-chief, and their impeachment value was purely speculative. As to evidence about when J “wiped” her computer, the state argues that defendant did not demonstrate that the computer would contain such information or conflict with J‘s testimony. As a result, the state contends, defendant did not meet the statutory requirements of specificity, relevance and admissibility.
For the reasons that follow, we conclude that
As noted,
The Court of Appeals began with a discussion of the pretrial subpoenas that the defendant had issued, id. at 62-65, and explained that
In Nixon, 418 US 683 (1974), the trial court ordered pretrial production of taped conversations between the President and his advisors, 418 US at 686, and the Supreme Court concluded
The Court of Appeals reached the same conclusion as to the defendant‘s trial subpoena. Id. at 77. The court described defendant as taking the position that the constitution entitled him “to require a nonparty to produce materials of unknown materiality and favorability, despite the nonparty‘s claim of privilege, merely because, by taking the witness stand, the witness‘s credibility is necessarily placed at issue.” Id. The court remarked that “[n]o case supports his position.” Id.
This court allowed review and construed
Applying that test to the third subpoena that the defendant had issued, the court concluded that the trial court erred in denying the defendant‘s motion to compel. Id. The court reasoned that, “even if the trial court had some choice as to whether to make the audiotapes available to [the] defendant on the morning of trial, as the third motion to compel apparently requested, it had no choice in the matter after those witnesses testified.” Id. at 420 (emphasis in original; footnote omitted). “[W]hen a litigant requests that a witness‘s prior statement be made available for use in his or her cross-examination, the court must honor that request.” Id.
Thus, under Cartwright,
Requiring a more specific demonstration of the admissibility of evidence before a party obtains it would not only be impractical, it also would fail to give due consideration to the role that the full disclosure of facts plays in our system of justice and the constitutional underpinnings of the subpoena statute. As the Court explained in Nixon, “[t]he very integrity of the judicial system and public confidence in the system depend on full disclosure of all the facts, within the framework of the rules of evidence.” 418 US at 709. Moreover, “[t]he right to the production of all evidence at a criminal trial * * * has constitutional dimensions.” Id. at 711.
In this case, then,
But here, as the trial court recognized, neither the parties nor the court could know, without a forensic examination of J‘s computer, precisely what data it contained, and there was no doubt that it contained chaff as well as wheat. An individual “generally has a privacy interest in the information on his or her personal computer.” State v. Mansor, 363 Or 185, 208, 421 P3d 323 (2018).
In Mansor, we recognized the unique characteristics of a search for data contained in such computers. Id. at 208-09. We recognized that a broad search of a personal computer may present risks to individual privacy similar to those presented by general warrants, and we adopted rules specific to such searches to ensure that an individual‘s right to computer privacy is adequately protected. Id. at 216-21.
A subpoena that requires the production of a computer at trial and necessitates a forensic examination of its digital contents presents similar risks to individual privacy, and we have a similar obligation to adopt rules to protect against those risks. In Mansor, one of the rules that we adopted requires the party seeking to examine a computer
If a witness‘s only objection to a forensic examination is a generalized privacy objection and not a particularized objection based on a recognized privilege or statutory grant of confidentiality, then those rules, as articulated in Mansor, should be sufficient to protect against an invasion of the witness‘s privacy. See Nixon, 418 US at 713 (President‘s generalized interest in confidentiality “must yield to the demonstrated, specific need for evidence in a pending criminal trial.“). If, however, the witness contends that the computer contains privileged information or information statutorily protected from disclosure, further protections, such as in camera inspection to ensure that privileged or statutorily protected information is not released, may be warranted. See, e.g., United States v. Zolin, 491 U.S. 554, 556-57, 109 S Ct 2619, 105 L Ed 2d 469 (1989) (in camera inspection may be required to determine the applicability of the crime-fraud exception to the attorney client privilege); Nixon, 418 US 714-16 (in camera inspection examination necessary to assess President‘s objection based on executive privilege); Frease v. Glazer, 330 Or 364, 372, 4 P3d 56 (2000) (adopting Zolin framework to determine whether trial court may order in camera review to determine applicability of Oregon‘s crime-fraud exception); Warren, 304 Or at 434-35 (requiring in camera inspection to protect against the release of information statutorily protected from disclosure).
In this case, defendant made the requisite threshold showing for the enforcement of his trial subpoena because
In the ordinary case, when a party seeks to enforce a trial subpoena for a computer, the party will want to obtain the digital information in the computer and not the computer itself. In that instance, the party also will want to obtain a forensic examination of the computer and a report of the examination. Whenever a court is asked to order such an examination and report, the court must impose conditions necessary to protect against the unreasonable invasion of a witness‘s privacy, including prescribing the contours of the examination and the terms of requested protective orders. In addition, if a party seeks information protected against disclosure by privilege or statute, the court must consider whether to conduct an in camera inspection to ensure against their dissemination.19 Finally, when a trial is underway at the time of a party‘s request for forensic examination, a court is entitled to consider the delay, if any, that would result from such an examination. We note that, under
In this case, however, the trial court did not have the opportunity to take those steps because it determined, at the outset, that it would not enforce defendant‘s subpoena.
In Cartwright, as noted, we held that the trial court had erred in failing to require the production of audio recordings that, the defendant contended, could contain impeaching witness statements. 336 Or at 419-20. We also held that the trial court‘s error was not harmless because the defendant did not have the benefit of those recordings and “cross-examining those witnesses on their prior statements could have been a very effective method of undermining the state‘s case.” Id. at 420. As a result, we vacated the defendant‘s convictions but remanded for the court to require production of the recordings and then decide whether to order a retrial or reinstate the convictions. Id. at 421. On remand, we explained, the defendant would have an opportunity to review the recordings and, if the defendant found that there was material that could serve as a basis for impeaching or otherwise discrediting the witness, seek a hearing. Id. After a hearing, the trial court could order a new trial, or, alternatively, make findings that the “defendant‘s inability to use the materials could not have affected the verdict” and reinstate the original judgment of conviction. Id.
A similar remedy is appropriate under these circumstances. Here, the trial court erred in failing to require J to produce her computer for forensic examination, and J‘s computer could have contained evidence that could have provided for an effective cross-examination of J, who was the key witness in the state‘s case. Therefore, the trial court‘s error was not harmless, and we vacate defendant‘s convictions and remand to the trial court to order J to produce her computer and subject it to forensic examination.20 In doing so, the court must impose conditions on that examination that are necessary to protect J‘s privacy interest in the digital contents of the computer. The court must, for example, prescribe the contours of the examination and the terms of any requested protective orders. On completion of the
The decision of the Court of Appeals is affirmed. The judgment of the circuit court is vacated, and the case is remanded to the circuit court for further proceedings.
Notes
“(a) Prohibitions.—Except as provided in subsection (b) or (c)—
“*****
“(2) a person or entity providing remote computing service to the public shall not knowingly divulge to any person or entity the contents of any communication which is carried or maintained on that service—
“(A) on behalf of, and received by means of electronic transmission from (or created by means of computer processing of communications received by means of electronic transmission from), a subscriber or customer of such service;
“(B) solely for the purpose of providing storage or computer processing services to such subscriber or customer, if the provider is not authorized to access the contents of any such communications for purposes of providing any services other than storage or computer processing[.]”
“(b) Contents of Wire or Electronic Communications in a Remote Computing Service.—
“(1) A governmental entity may require a provider of remote computing service to disclose the contents of any wire or electronic communication to which this paragraph is made applicable by paragraph (2) of this subsection—
“(A) without required notice to the subscriber or customer, if the governmental entity obtains a warrant issued using the procedures described in the Federal Rules of Criminal Procedure (or, in the case of a State court, issued using State warrant procedures) by a court of competent jurisdiction; or
“(B) with prior notice from the governmental entity to the subscriber or customer if the governmental entity—
“(i) uses an administrative subpoena authorized by a Federal or State statute or a Federal or State grand jury or trial subpoena; or
“(ii) obtains a court order for such disclosure under subsection (d) of this section;
“except that delayed notice may be given pursuant to section 2705 of this title.”