Defendant Must Make Facial Showing of Transcript Error Before State Compelled to Allow Inspection of Hard Drive
2007-1611. State v. Rivas, Slip Opinion No. 2009-Ohio-1354.
Greene App. No. 05-CA-147, 172 Ohio App.3d 473, 2007-Ohio-3593. Judgment reversed.
Lundberg Stratton, O'Connor, O'Donnell, and Lanzinger, JJ., concur.
Moyer, C.J., and Pfeifer and Cupp, JJ., dissent.
Opinion: http://www.supremecourt.ohio.gov/rod/docs/pdf/0/2009/2009-Ohio-1354.pdf 
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(March 31, 2009) The Supreme Court of Ohio ruled today that when a prosecutor has provided a criminal defendant with a written transcript of data stored on a computer hard drive, a trial court may not order an examination of the hard drive to verify the accuracy and completeness of the transcript unless the defendant first makes a prima facie (sufficient on its face) showing that the evidence contained in the transcript is “false, incomplete, adulterated or spoliated.”
The Court’s 4-3 majority decision, authored by Justice Terrence O’Donnell, reversed a ruling by the 2nd District Court of Appeals.
In January 2005, Xenia police arrested Jose Rivas of Cincinnati at a Xenia hotel after Rivas had engaged in two online chat room conversations with a police officer posing as a 14-year-old girl named “Molly.” During those conversations, Rivas made graphic sexual comments, sent “Molly” an erotic photo that purported to be of himself, offered her $200 to have sex with him, and arranged to meet her at the hotel. He was arrested when he showed up at the appointed place and time and sent a pre-arranged pager message directing the girl to his hotel room.
Rivas was indicted on felony counts of importuning for sex and attempted unlawful sexual conduct with a minor. During pretrial proceedings, Rivas filed a discovery motion seeking access to the computer hard drive on which his online conversations had been recorded. The state provided Rivas with a printed transcript and a compact disc copy of the online chat room conversations, but refused to allow a defense expert to make a “mirror image” copy of the hard drive, asserting that the hard drive was a confidential investigative record not subject to discovery because it included evidence in multiple other cases including a number that were still ongoing.
Rivas asserted that portions of the police transcript were inaccurate, and asked the trial court to compel the prosecutor to allow a defense expert to physically examine and/or copy the contents of the hard drive. After a hearing, the court denied Rivas’ motion to compel examination or copying of the hard drive. He was subsequently convicted by a jury on both felony counts. Rivas appealed his convictions. On review, the Second District Court of Appeals vacated the trial court’s judgment and remanded the case for a new trial. The appellate panel held that the trial court had violated Rivas’ due process rights when the judge failed to at least conduct an in-camera inspection of the computer hard drive to determine whether the transcript provided by the state was in fact a complete and accurate record of the conversations on which the charges against Rivas were based.
The state, represented by the Greene County prosecutor’s office, sought and was granted Supreme Court review of the Second District’s ruling.
Writing for the majority in today’s decision, Justice O’Donnell noted that there are no prior Supreme Court decisions addressing the specific issue presented by this case, but pointed to multiple state and federal court rulings holding that when there is a dispute over the materiality of evidence sought from the state by a criminal defendant, “(I)t is the accused who bears the initial burden of establishing a prima facie case of materiality before Crim.R. 16(B) requires the state to turn over tangible evidence. … Moreover, in other situations in which the accused asserts that the government withheld or destroyed evidence, this court has held that the accused bears the burden of establishing his case. The defendant bears the burden of showing that the state acted in bad faith in destroying potentially useful evidence … and of showing that the state withheld favorable and material evidence. … Mere speculation does not meet the accused’s burden to show that the withheld evidence is material.”
At the time Rivas moved the trial court to compel a physical examination and copying of the police hard drive, Justice O’Donnell wrote, “Rivas presented no evidence that the state refused to produce material evidence or that it provided him with false, incomplete, adulterated, or spoliated evidence. … Rather than specifically testifying that any evidence had in fact been altered, Rivas’s expert explained that he could establish the falsification of the state’s discovery – assuming any falsification had actually occurred – only by examining the hard drive of the state’s computer. However, speculation and conjecture regarding the possibility of material evidence appearing on the hard drive do not demonstrate any inaccuracy in the discovery that the state provided so as to entitle Rivas to inspect the hard drive and verify the accuracy of the transcript. … (B)ased on the speculation of an expert witness and Rivas’s unsupported assertion that the transcript has been altered, the court of appeals concluded that Rivas had a right to verify the discovery provided by the state. The appellate court’s decision makes the wrong presumption about discovery. The presumption should be that counsel comply 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.”
Based on that analysis, Justice O’Donnell concluded that “Rivas failed to provide any evidence to support his allegation that what had been provided to him during the course of discovery lacked accuracy, authenticity, or completeness, and he destroyed or discarded his own computer hard drive, which would have given him the ability to make a prima facie showing that the state had provided false, incomplete, adulterated, or spoliated evidence. Where a party has received discovery pursuant to Crim.R. 16(B)(1)(c), a trial court will not order production of a mirror image of a computer hard drive without a prima facie showing that false, incomplete, adulterated, or spoliated evidence has been provided. Here, Rivas submitted a motion to compel discovery that lacked a sufficient evidentiary basis, and he has therefore failed to satisfy his burden of proof.”
The majority opinion was joined by Justices Evelyn Lundberg Stratton, Maureen O’Connor and Judith Ann Lanzinger.
Justice Robert R. Cupp entered a dissent that was joined by Chief Justice Thomas J. Moyer and Justice Paul E. Pfeifer. Justice Cupp wrote that in his view: “(T)he majority’s holding conflicts with the plain language of Crim.R. 16(B)(1)(c) ... by imposing obligations on the defendant beyond the rule’s ‘materiality’ standard. The only limitations in Crim.R. 16(B)(1)(c) are that evidentiary materials must be in the state’s possession and must be (1) material to the preparation of defense; (2) intended for use by the prosecuting attorney as evidence at the trial; or (3) obtained from or belong to the defendant. In this case, the computer hard drive was in the state’s possession and was material to defendant’s defense theory. Further, the prosecutor intended to use, in printed form, the data contained on the hard drive as part of the state’s evidence. ... In contrast to the majority’s holding, nothing in the text of Crim.R. 16(B)(1)(c) requires a defendant to demonstrate any threshold indicia of unreliability of the challenged evidence in the state’s custody. The trial court should have ordered the state to produce the hard drive for the defendant’s inspection or copying.”
Contacts
Elizabeth A. Ellis, 937.562.5250, for the state and Greene County prosecutor’s office.
Marc D. Mezibov, 513.723.1600, for Jose Rivas.