State v. Bray, 363 Or. 226

Summary

The Oregon Supreme Court considered whether due process required the state or trial court to obtain a defendant's witness's internet search records from Google under the Stored Communications Act. The court held that the trial court did not err in refusing to compel the state to seek additional legal process from Google and did not err in denying dismissal for prosecutorial misconduct. The court further addressed enforcement of a subpoena for the witness's computer, concluding that an ordinary trial subpoena must be enforced unless it is clear that the requested material has no potential use at trial.

Holdings

1. The statute did not require the state to obtain and disclose the victim's Google internet-search records because the Stored Communications Act made the records confidential and Google could not disclose them to the state merely on request; judicial process was required.
2. Due process did not require the trial court to compel the district attorney to apply for a search warrant or Stored Communications Act order to obtain the records.
3. The trial court did not err in denying dismissal for prosecutorial misconduct because the defendant did not establish that the state's delay caused an irretrievable loss of evidence or otherwise deprived him of a fair trial.
4. Under ORS 136.580 and State v. Cartwright, a trial subpoena duces tecum must be enforced when the subpoenaed computer and its contents have any potential use in cross-examination, unless it is clear that the material has no potential use.
5. When enforcement of a trial subpoena requires forensic examination of a witness's computer, the court must prescribe reasonable limits on the examination and disclosure, protect privileged or statutorily confidential information, and consider in camera review where appropriate.

Questions Presented

1. Whether Oregon's criminal-discovery statute required the state to obtain the victim's Google internet-search records when Google would not disclose them without judicial process.
2. Whether due process required the trial court to compel the prosecutor to apply for a search warrant or Stored Communications Act order to obtain the victim's Google records.
3. Whether the state's delay in issuing a subpoena to Google required dismissal of the criminal charges for prosecutorial misconduct.
4. Whether ORS 136.580 required enforcement of the defendant's trial subpoena for the victim's computer and its digital contents.
5. What privacy protections and remedial procedure were required when forensic examination of a subpoenaed computer could expose irrelevant or privileged information.

Disposition

vacated