Electronic Discovery Law
Court Denies Criminal Defendant Access to Image of Police Hard Drive Absent Showing of Falsification or Adulteration of Transcripts of Chats Produced by the State
State v. Rivas, 121 Ohio St. 3d 469, 905 N.E.2d 618 (Ohio 2009)
In this case, the Supreme Court of Ohio was asked to address the question of whether “in a case in which a prosecutor has complied with its duty to provide discovery by delivering a transcript of evidence from the hard drive of a police computer, the accused has the right to obtain a mirror image of the computer hard drive without making a prima facie showing that the information in the transcript is false, incomplete, adulterated, or spoliated.” The court concluded that without making such a showing, a defendant has no right to obtain a copy of the hard drive.
Defendant Jose Rivas was convicted at trial of attempted unlawful sexual conduct with a minor. Rivas was arrested on suspicion of such conduct at a local hotel, after arriving for a meeting with a person he believed to be a minor girl. The minor girl, actually a police detective, and Rivas met online on an Internet chat service.
Prior to trial, Rivas moved to preserve the state’s electronic evidence and sought a mirror image of the police computer used to communicate with him. The prosecution resisted the order of the trial court allowing Rivas to inspect the computer and refused to provide a mirror image for “security reasons.” Instead, the prosecution provided a transcript of the conversations and a CD containing an electronic copy of the online communications.
Rivas moved to suppress the computer evidence and to compel production of a mirror image of the hard drive. The trial court denied Rivas’ motion concluding that Crim. R. 16(B)(1)(c) did not require such a production absent “allegations and some evidence that what has been provided is not accurate.” The trial court explained that there was no evidence that the transcripts had been “altered or compromised in any way” and that concerns of alteration were unfounded. The trial court also noted that Rivas had destroyed his own hard drive, which would have allowed him to verify the accuracy of the transcripts.
At trial, Rivas alleged that the transcripts did not accurately reflect his Internet communications with the detective. He was convicted, nonetheless.
On appeal of his conviction, however, the judgment was reversed upon a finding that the denial of access to a copy of the police hard drive violated Rivas’ right to a fair trial by denying him the opportunity to verify the accuracy and completeness of the transcripts produced. In so finding, the appellate court stated, “a defendant should not be required to take the word of the adverse party.”
The state appealed the reversal of the trial court to Ohio’s Supreme Court. The state argued that the trial court properly denied Rivas’ motion to compel because “the hard drive contained confidential law enforcement investigatory records protected from disclosure under the Public Records Act.” The state also argued that Rivas failed to meet his burden to show that the transcripts provided were incomplete or otherwise inaccurate.
Rivas argued that the plain language of Crim. R. 16(B)(1)(c) permitted the requested inspection, “explaining that the rule requires discovery of tangible evidence that is material to the preparation of his defense” and that the hard drive was material.
In its analysis, the Supreme Court first acknowledged that Crim. R. 16(B)(1)(c) permits the inspection of tangible, material evidence but indicated that the question before it was which party bears the burden of going forward with evidence when the accused seeks to verify the discovery provided by the state.
Turning to the Federal Rules of Criminal Procedure for guidance, the court noted that Fed. R. Crim. P. 16(a)(1)(E) requires that defendants show that tangible evidence is material before requiring the government to produce such evidence in its possession. The court went on to point out “other situations” in which the courts have held that the accused “bears the burden of establishing his case” including instances of alleged spoliation. Accordingly, the court concluded that pursuant to Crim R. 16(B)(1)(c), “when a prosecutor has provided a written transcript that purports to accurately reflect data stored on a computer hard drive, a court may not order an examination of the computer hard drive unless the defense makes a prima facie showing that the state has provided false, incomplete, adulterated or spoliated evidence.”
Rivas made no such showing. Rather than evidence that the transcripts were inaccurate, Rivas offered only speculation and indicated he could establish falsification only by examining the hard drive. Speculation, however, was insufficient to justify inspection.
Addressing the decision of the appellate court, the Supreme Court stated:
The appellate court’s decision makes the wrong presumption about discovery. The presumption should be that counsel comply [sic] with our rules of discovery. Presuming the state’s lack of compliance with discovery based on an assertion by an opposing party, and ordering the state to verify its discovery on such an assertion, sends the wrong message to the legal community and does not represent the law of this state.
Thus, the court concluded:
Because the state has provided a printed copy of the transcript of the conversations in this instance, and because Rivas has failed to meet his burden of proof to show that the state has provided false, incomplete, adulterated, or spoliated evidence, the state has complied with its obligations pursuant to Crim.R. 16(B)(1)(c), and access to a mirror image of the hard drive of the police computer is not material to the preparation of the defense. We therefore reverse the judgment of the court of appeals.
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