Computer Evidence

EDITOR’S NOTE: The case referred to is: State v. Rivas, 121 Ohio St.3d 469, 2009-Ohio-1354. Case No. 2007-1611. Decided March 31, 2009. Majority opinion written by Justice Terrence O’Donnell.

By Ohio Supreme Court Justice Paul Pfeifer
On January 3, 2005, Detective Alonzo Wilson, a member of the Xenia Police Division’s Internet Child-Protection Unit, logged onto an Internet chat service posing as a 14-year-old female named Molly. A man named Jose Rivas – using the screen name JRivas123 – contacted “Molly” asking for her age, gender, and photograph.

The two carried on an online conversation, and eventually Wilson e-mailed Rivas a teenage photo of a Xenia police detective. Rivas e-mailed Molly an explicit photo which, he claimed, was of him. He then propositioned her and offered her $200 to engage in sexual activity with him. Rivas eventually arranged to meet Molly at a hotel. After police observed Rivas checking in, Wilson arrested him.

Prior to trial, Rivas filed a motion to preserve the state’s electronic evidence and he sought a mirror image of the hard drive of the state’s computer used by Wilson to communicate with him. The trial court ordered the state to allow Rivas to inspect the computer, but the prosecution refused to allow the defense to retrieve a mirror image of the hard drive, citing “security reasons.” The prosecution did provide a transcript of the conversations and a compact disc containing an electronic copy of the online communications.

Rivas then filed a motion to suppress the computer-generated evidence and to compel the state to provide a mirror image of the computer hard drive. But the trial court denied the motion, concluding that Criminal Rule 16 – one of the rules that govern the proceedings of a trial – did not require the state to produce an exact copy of its computer hard drive “in the absence of allegations and some evidence that what has been provided is not accurate.”

The jury found Rivas guilty of importuning and attempted unlawful sexual conduct with a minor, but both convictions were reversed on appeal. The court of appeals concluded that the trial court had violated Rivas’s right to a fair trial when it refused him the opportunity to verify the accuracy and completeness of the computer transcripts prepared by the state.

After the court of appeals ruling, the case came before us – the Supreme Court of Ohio. Essentially, the case came down to this question: Did Rivas have a right to the mirror image of the hard drive? By a four-to-three vote, the majority of our court determined that he did not.

The previously mentioned Criminal Rule 16 permits the accused to inspect tangible evidence that is material to the preparation of his defense. But the majority concluded that in order to inspect the hard drive, Rivas was required to make a prima facie showing – meaning at first appearance, before investigation – that the information in the transcript was false, incomplete, adulterated, or spoliated.
The majority maintained that in other cases in which the accused claimed that the government withheld or destroyed evidence, our court has determined that the burden of proof falls on the party alleging spoliation.

But three members of our court disagreed with this conclusion. Chief Justice Thomas J. Moyer, Justice Robert R. Cupp, and I cast dissenting votes because the majority’s holding contrasted with the plain language of Criminal Rule 16 and because appropriate mechanisms otherwise exist within the Criminal Rules to safeguard information not relevant to the defendant’s defense.

In a dissent that Chief Justice Moyer and I joined, Justice Cupp wrote, “There is no requirement in the discovery provisions of the Criminal Rules that a defendant who wishes to verify the accuracy of the printed version of electronic data stored on a state’s computer hard drive must first make a prima facie showing that the state provided false, incomplete, adulterated, or spoliated evidence.

“Although defendant’s basis for asserting a discrepancy between the printed version of the data and the version that resides on the computer hard drive may seem unusual, there is no justification for creating, as the majority opinion does, a permanent judicial gloss over the plain language of the discovery rules to short-circuit defendant’s discovery request.”

The only limitations in the Criminal Rule are that evidentiary materials must be in the state’s possession and must be (1) material to the preparations of defense, (2) intended for use by the prosecuting attorney as evidence at the trial, or (3) obtained from or owned by the defendant.

In this case, the hard drive was in the state’s possession and was material to Rivas’s defense theory. In contrast to the majority’s holding, nothing in the text of the Criminal Rule requires a defendant to demonstrate any threshold indicating the unreliability of the challenged evidence in the state’s custody.

The trial court should have ordered the state to produce the hard drive for Rivas’s inspection. As the court of appeals recognized, “forcing a litigant to rely upon an adverse party’s representation that a transcript” is accurate without allowing any verification of that accuracy is inconsistent with general notions of a fair trial.

True, the state has legitimate reason to prevent Rivas unrestricted access to the data on the computer, but the methods by which a court may limit access to only the information needed for his defense are delineated in the Criminal Rules as well. The state can use protective orders and restrictions on the time, place, and manner of the inspection and copying of evidence.

The exact form of protective measure is a decision best left to the sound discretion of the trial court, but the fact remains that such a safeguard exists within Criminal Rule 16.

“Rather than improvising a standard that is unsupported by the plain language of the criminal rule and likely to have unforeseen consequences,” Justice Cupp concluded, “we should hold that the safeguards specially contemplated by the rule should be used to prevent disclosure of information not relevant to a defendant’s defense.”

Nevertheless, despite our dissent, the majority decision holds sway. According to the majority, Rivas failed to meet his burden of proof, and the state complied with its obligations. We therefore reversed the judgment of the court of appeals.