We are starting to see more and more that an agency is downloading a victim's phone and presenting the file to us with the case. Example would be texts the defendant sent to the victim. A consent is obtained and the WHOLE phone is downloaded.
Fast forward to trial prep and defense has decided 39.14 requires us to turn it ALL ALL over- which we will not do unless a judge orders it.
We recently had a hearing and it didn't seem the judges are interested in going through 13 GB of data and ordered it turned over.
Seems wrong that a person's entire life on their phone has been given out when texts were the only thing really material to the case.
Is anyone else seeing this same thing? How do you handle it?
October 27, 2017, 09:33
Have your officers take pics of the relevant screens on the phone, admit those photos as regular photos. Cannot imagine a trial where you have downloaded the entire phone, get a single photo / text admitted into evidence and defense asks the court to admit the ENTIRE download under a completeness theory. You may also want to request that the carrier preserve the data in case you need it later. See also Kinnamon v. State - Defendant has no general right of discovery: Just because you have something does not make it relevant to the prosecution of the case.This message has been edited. Last edited by: Larry L,
October 27, 2017, 11:01
Law enforcement is doing the download of the whole phone as a matter of course now. It isn't about admitting the phone that concerns us, it's that we are being required to turn it over for no other reason than we have it.
October 27, 2017, 11:12
Since it’s you and not me that has to deal with the fallout, I say you refuse to turn over non-relevant information and go for a mandamus and get us all some case law on this. I’d love for some appellate courts to cut through the clutter that trial judges are causing with overly broad interpretations of the discovery statute that are putting our victim’s personal information at risk.
But again... that’s ‘cause I’m really good at telling other people to shoot at the bear. I’m not gonna have to deal with the headaches if it goes wrong!
October 27, 2017, 13:47
Article 39.14 only requires that you turn over "evidence material to any matter involved in the action." It's hard to imagine that anything but the text messages in question would be "material", but I imagine we'll need a published opinion to be 100% safe.
October 27, 2017, 15:03
As a compromise, you might suggest that while there is no other relevant info in the phone messages than what you wish to introduce at trial, out of an abudance of caution, the court needs to inspect all the data in camera and decide if there is anything you might have missed.
October 27, 2017, 17:50
See, the trick that trial judges are falling for isn’t that it somehow becomes material under a defense theory of “Well, EVERYTHING is impeachment evidence based on how they might answer my questions on cross. So we don’t know if it’s material until we see what the answers to my questions are. And I won’t tell you my questions until we get to trial because I don’t want to give away my defense.”
And that’s opening the flood gates to victims’ entire personal history in some cases like this one here. I don’t necessarily trust a COA to get this right on appeal the first time, but I do believe the CCA will give us some authoritative opinions to show trial judges and get this reigned in a bit, without having to wait until a victim gets killed while awaiting trial.