Michael Lewandowski is charged with aggravated felonious sexual assault. Before his trial, the judge issued an order that the prosecutor’s office must obtain and preserve all of the victim’s cell phone records, and then deliver those records to the judge for a private review. If the judge determined that any of these records were helpful to the defendant he would turn them over to the defendant’s lawyers. For example, if the victim had sent text messages contradicting what she told the police this would be something the defendant should know about.
Last month, after an appeal, the New Hampshire Supreme Court reversed the judge’s decision, and found that the judge had no authority to require the prosecutor’s office to obtain and deliver such records.
Long ago, in the famous case of Brady v. Maryland, it was decided that the prosecutor must disclose to the defendant all “exculpatory evidence,” which means any evidence that would tend to show the defendant is innocent. More recently, in the case of State v. Gagne, the New Hampshire Supreme Court held that, if there is a “reasonable probability” that confidential records contain evidence helpful to the defendant, then the judge should review those records privately and disclose anything helpful to the defendant. Longstanding practice has been that, if the records are maintained by a third party, the judge will directly order that the third party deliver them to the court, or will order the prosecutor to obtain and deliver them. The Lewandowski case says that this practice is wrong. While the prosecutor’s office must disclose all material helpful to the defendant in its possession, it is not required to conduct investigation on the defendant’s behalf to locate material not currently in its possession.
The problem is that this puts the defendant at a key disadvantage because the prosecutor’s office has many more resources at its disposal to investigate and gather evidence. In many instances the police and prosecutor have already completed their investigation before charges are even brought and therefore the defendant will have lost much opportunity to gather evidence. For example, the police office can immediately subpoena or request search warrants for text messages or other digital evidence. The defendant can’t request a search warrant and, while the law theoretically allows the defendant to subpoena records, in practice this is difficult as there must be a court hearing scheduled to subpoena a witness to appear for with records.
Compare this to civil cases. In civil cases, even before a lawsuit begins, one party can put the other party on notice of a potential claim and send what is called a “preservation letter.” This is a letter that requires the other party to preserve all relevant records. Once the lawsuit begins the parties can freely request records and schedule depositions, subpoenaing records to these depositions. These options are either completely unavailable to a criminal defendant, or much more limited.
The reasoning of the Lewandowski decision makes sense to some extent. The prosecutor shouldn’t be expected to perform unlimited investigation on the defendant’s behalf. On the other hand, under the current system the defendant is left with little alternatives for gathering evidence held by third parties who probably would not voluntarily cooperate. One good change would be to allow the free scheduling of depositions in criminal cases, just as in civil case. The defendant could then notice a deposition to any relevant witness, including a subpoena for the witness to deliver records. If the witness felt the request was unreasonable then the witness could request that the subpoena be quashed.