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by

Jill Paperno, 

author of

Representing the Accused: A Practical Guide to Criminal Defense

The subject of subpoenas used to obtain records (duces tecum) is one that you can spend a career trying to master, and never quite get there.  Among the questions you may have to consider when issuing subpoenas are the following:

Can you issue on your own authority or do you have to prepare a judicial subpoena duces tecum?

Do you have to give notice to the other side or third parties?

Do you have to file a motion?

Are there specific laws that govern the type of records you are seeking - medical, mental health, Child Protective, etc.?

Is there specific language that must be used or a specific showing in your application or motion?

Is an order required in addition to the subpoena?

Can you apply ex parte so as not to alert your opponent to the defense theory?

If the material is considered discoverable, can you get it by subpoena?

Does the prosecutor have standing to object?  (Just because they have notice doesn't mean they have standing.)

Where must the materials be sent?

Are they properly certified so the records will be admissible if necessary?

If the prosecutor is trying to subpoena records, in addition to some of the above, there are other issues to consider when trying to prevent issuance of subpoenas:

Do they have the authority to get those records?

Must they be on court order?

Does the defense get notice?

Does the defendant have standing to object?

Does compliance with a prosecutor's subpoena for your client's records violate a privilege?

The answers to these questions will vary from jurisdiction to jurisdiction, but there are some areas that we must all become familiar with no matter where we practice.  One increasingly important area is social media content and metadata.  How many times have we wanted to obtain and introduce the Facebook posts of a complaining witness, or prayed the prosecutor wouldn't see our clients' pages, replete with photos of weed and guns?

If our clients' Facebook entries and Twitter tweets are communications between family and friends, isn't there a Fourth Amendment privacy issue? The following is a (non-exhaustive by any means) discussion of this burgeoning area of law.

There is a federal statute, the Stored Communications Act (SCA), that governs disclosure of social media information.  Based on this law, these companies will not comply with non-judicial subpoenas for certain social media information.  We must become familiar with it, both to obtain records and to oppose the disclosure of our clients' records.  The law distinguishes between newer and older communications, and whether the material sought is content, or the information relating to times, dates, recipients, etc. (metadata).  (Although we easily understand the importance of content, metadata can be very informative too.  For an interesting short lecture on the significance of metadata, see "The Power of Metadata", a Ted talk that can be found on youtube.)

The SCA, 18 U.S. Code Sections  2701 et. seq., governs disclosure by providers of communication services to the public.  For an in-depth discussion of its history and interpretation, see "Discovering Facebook: Social Network Subpoenas and the Stored Communications Act", Harvard Journal of Law & Technology, Volume 24, Number 2 Spring 2011.  http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech563.pdf

Section 2703 addresses disclosure of information through subpoenas and search warrants.  This statute was written years ago, well before social media became commonplace.  So its application has required courts to interpret and reinterpret the law.  The statute distinguishes between information held on an RCS (Remote Computing Service) and ECS (Electronic Communication Services) -  RCS's being entities that store information and ECS's being entities that provide services that enable communication. Some providers may be considered both.

Seeking records

Section 2703(f) requires that an entity that is subject to this law must preserve information upon request of a governmental entity.  The statute (Section 2711) defines governmental entity as "a department or agency of the United States or any State or political subdivision thereof."  Does this mean defense counsel cannot obtain the records?  Maybe we can get a court to order the prosecution to subpoena.  But more often, we will have to go after it.  As defense counsel, we will have to raise the arguments we raise when seeking other records protected by statute, that the constitutional rights trump statutory protections.  (See, e.g., Davis v. Alaska, 415 U.S. 308 and Pennsylvania v. Ritchie 480 U.S 39.)  In the George Zimmermann prosecution, the trial judge granted defense subpoenas for social media records of Trayvon Martin and his girlfriend.  So it can be done.

In U.S. v. Zhuta, 2011 WL 1330855 (W.D.N.Y.), 2 (W.D.N.Y.,2011) Magistrate Judge Hugh Scott denied defendant's numerous subpoenas, including social media subpoenas, without prejudice and without reference to the SCA, instead considering constitutional grounds. But the case did not squarely address a defendant's rights to the material.  We will have an uphill battle as we litigate these cases.  We will have to urge courts to find that our clients' constitutional rights to Due Process, Fair Trial, Confrontation and Compulsory Process under the U.S. Constitution (and your state's parallel state constitutional rights) mandate disclosure.

In "Social Media Evidence in Criminal Proceedings - An Uncertain Frontier", at http://about.bloomberglaw.com/practitioner-contributions/social-media-evidence-in-criminal-proceedings-an-uncertain-frontier-by-justin-p-murphy-and-adrian-fontecilla/, Justin Murphy and Adrian Fontecilla highlight the issues and arguments we will be facing and making.

For some suggestions on how to obtain records by request, (remember metadata?), take a look at "Obtaining Records From Social Networking Websites", http://www.msba.org/sec_comm/sections/solo/docs/ObtainingRecordsFromSocialNetworkingWebsites.pdf.

Opposing subpoenas

In Crispin v. Audigier a California District Court, citing two other federal court decisions, found the party whose records were sought had standing to contest the subpoenas. 

At least two district courts have concluded that individuals have standing to move to quash a subpoena seeking personal information protected by the SCA. In J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc., Civil Action No. 2:07–CV–119, 2008 WL 3833216 (N.D.Miss. Aug. 14, 2008), the district court found that “because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider.” Id. at *1. The court finds J.T. Shannon Lumber persuasive. Specifically, it concludes that an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.

Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 974 (C.D.Cal.,2010)

Other courts have ruled there is no third party standing.  See, e.g. People v. Harris, 36 Misc. 3d 868.

Interestingly, the SCA does provide a basis for opposing subpoenas related to your client.  If you learn of the subpoena and have standing - another question addressed by some courts - you can argue the prosecution has not made the proper application requiring factual assertions and the assertions do not meet the legal standard  for disclosure under the statute:

(d) Requirements for Court Order.—A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

Additionally, the Sixth Circuit in U.S. V. Warshack 631 F.3d 266 held that despite the SCA, defendant Warshack had a reasonable expectation of privacy protected by the Fourth Amendment, and the release of emails pursuant to the SCA without a warrant based on probable cause violated the defendant's Fourth Amendment rights (though the Court found that the police had a good faith basis to believe the search was lawful).

Other challenges may involve arguing a provider is not covered by the definition of the statute, and therefore issuance of subpoenas or search warrants pursuant to the statute was unlawful, and evidence obtained should be suppressed.  For a review of these (unsuccessful) efforts in one case, see U.S. V. Orisakwe, 2013 WL 4836084.

by

Jill Paperno, 

author of

Representing the Accused: A Practical Guide to Criminal Defense

The subject of subpoenas used to obtain records (duces tecum) is one that you can spend a career trying to master, and never quite get there.  Among the questions you may have to consider when issuing subpoenas are the following:

Can you issue on your own authority or do you have to prepare a judicial subpoena duces tecum?

Do you have to give notice to the other side or third parties?

Do you have to file a motion?

Are there specific laws that govern the type of records you are seeking - medical, mental health, Child Protective, etc.?

Is there specific language that must be used or a specific showing in your application or motion?

Is an order required in addition to the subpoena?

Can you apply ex parte so as not to alert your opponent to the defense theory?

If the material is considered discoverable, can you get it by subpoena?

Does the prosecutor have standing to object?  (Just because they have notice doesn't mean they have standing.)

Where must the materials be sent?

Are they properly certified so the records will be admissible if necessary?

If the prosecutor is trying to subpoena records, in addition to some of the above, there are other issues to consider when trying to prevent issuance of subpoenas:

Do they have the authority to get those records?

Must they be on court order?

Does the defense get notice?

Does the defendant have standing to object?

Does compliance with a prosecutor's subpoena for your client's records violate a privilege?

The answers to these questions will vary from jurisdiction to jurisdiction, but there are some areas that we must all become familiar with no matter where we practice.  One increasingly important area is social media content and metadata.  How many times have we wanted to obtain and introduce the Facebook posts of a complaining witness, or prayed the prosecutor wouldn't see our clients' pages, replete with photos of weed and guns?

If our clients' Facebook entries and Twitter tweets are communications between family and friends, isn't there a Fourth Amendment privacy issue? The following is a (non-exhaustive by any means) discussion of this burgeoning area of law.

There is a federal statute, the Stored Communications Act (SCA), that governs disclosure of social media information.  Based on this law, these companies will not comply with non-judicial subpoenas for certain social media information.  We must become familiar with it, both to obtain records and to oppose the disclosure of our clients' records.  The law distinguishes between newer and older communications, and whether the material sought is content, or the information relating to times, dates, recipients, etc. (metadata).  (Although we easily understand the importance of content, metadata can be very informative too.  For an interesting short lecture on the significance of metadata, see "The Power of Metadata", a Ted talk that can be found on youtube.)

The SCA, 18 U.S. Code Sections  2701 et. seq., governs disclosure by providers of communication services to the public.  For an in-depth discussion of its history and interpretation, see "Discovering Facebook: Social Network Subpoenas and the Stored Communications Act", Harvard Journal of Law & Technology, Volume 24, Number 2 Spring 2011.  http://jolt.law.harvard.edu/articles/pdf/v24/24HarvJLTech563.pdf

Section 2703 addresses disclosure of information through subpoenas and search warrants.  This statute was written years ago, well before social media became commonplace.  So its application has required courts to interpret and reinterpret the law.  The statute distinguishes between information held on an RCS (Remote Computing Service) and ECS (Electronic Communication Services) -  RCS's being entities that store information and ECS's being entities that provide services that enable communication. Some providers may be considered both.

Seeking records

Section 2703(f) requires that an entity that is subject to this law must preserve information upon request of a governmental entity.  The statute (Section 2711) defines governmental entity as "a department or agency of the United States or any State or political subdivision thereof."  Does this mean defense counsel cannot obtain the records?  Maybe we can get a court to order the prosecution to subpoena.  But more often, we will have to go after it.  As defense counsel, we will have to raise the arguments we raise when seeking other records protected by statute, that the constitutional rights trump statutory protections.  (See, e.g., Davis v. Alaska, 415 U.S. 308 and Pennsylvania v. Ritchie 480 U.S 39.)  In the George Zimmermann prosecution, the trial judge granted defense subpoenas for social media records of Trayvon Martin and his girlfriend.  So it can be done.

In U.S. v. Zhuta, 2011 WL 1330855 (W.D.N.Y.), 2 (W.D.N.Y.,2011) Magistrate Judge Hugh Scott denied defendant's numerous subpoenas, including social media subpoenas, without prejudice and without reference to the SCA, instead considering constitutional grounds. But the case did not squarely address a defendant's rights to the material.  We will have an uphill battle as we litigate these cases.  We will have to urge courts to find that our clients' constitutional rights to Due Process, Fair Trial, Confrontation and Compulsory Process under the U.S. Constitution (and your state's parallel state constitutional rights) mandate disclosure.

In "Social Media Evidence in Criminal Proceedings - An Uncertain Frontier", at http://about.bloomberglaw.com/practitioner-contributions/social-media-evidence-in-criminal-proceedings-an-uncertain-frontier-by-justin-p-murphy-and-adrian-fontecilla/, Justin Murphy and Adrian Fontecilla highlight the issues and arguments we will be facing and making.

For some suggestions on how to obtain records by request, (remember metadata?), take a look at "Obtaining Records From Social Networking Websites", http://www.msba.org/sec_comm/sections/solo/docs/ObtainingRecordsFromSocialNetworkingWebsites.pdf.

Opposing subpoenas

In Crispin v. Audigier a California District Court, citing two other federal court decisions, found the party whose records were sought had standing to contest the subpoenas. 

At least two district courts have concluded that individuals have standing to move to quash a subpoena seeking personal information protected by the SCA. In J.T. Shannon Lumber Co., Inc. v. Gilco Limber, Inc., Civil Action No. 2:07–CV–119, 2008 WL 3833216 (N.D.Miss. Aug. 14, 2008), the district court found that “because the documents sought by the plaintiff are the personal documents and the details of the email accounts of the defendant employees, the defendants have standing to seek to quash this subpoena as they have a personal interest in the documents sought from the internet service provider.” Id. at *1. The court finds J.T. Shannon Lumber persuasive. Specifically, it concludes that an individual has a personal right in information in his or her profile and inbox on a social networking site and his or her webmail inbox in the same way that an individual has a personal right in employment and bank records.

Crispin v. Christian Audigier, Inc., 717 F.Supp.2d 965, 974 (C.D.Cal.,2010)

Other courts have ruled there is no third party standing.  See, e.g. People v. Harris, 36 Misc. 3d 868.

Interestingly, the SCA does provide a basis for opposing subpoenas related to your client.  If you learn of the subpoena and have standing - another question addressed by some courts - you can argue the prosecution has not made the proper application requiring factual assertions and the assertions do not meet the legal standard  for disclosure under the statute:

(d) Requirements for Court Order.— A court order for disclosure under subsection (b) or (c) may be issued by any court that is a court of competent jurisdiction and shall issue only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that the contents of a wire or electronic communication, or the records or other information sought, are relevant and material to an ongoing criminal investigation. In the case of a State governmental authority, such a court order shall not issue if prohibited by the law of such State. A court issuing an order pursuant to this section, on a motion made promptly by the service provider, may quash or modify such order, if the information or records requested are unusually voluminous in nature or compliance with such order otherwise would cause an undue burden on such provider.

Additionally, the Sixth Circuit in U.S. V. Warshack 631 F.3d 266 held that despite the SCA, defendant Warshack had a reasonable expectation of privacy protected by the Fourth Amendment, and the release of emails pursuant to the SCA without a warrant based on probable cause violated the defendant's Fourth Amendment rights (though the Court found that the police had a good faith basis to believe the search was lawful).

Other challenges may involve arguing a provider is not covered by the definition of the statute, and therefore issuance of subpoenas or search warrants pursuant to the statute was unlawful, and evidence obtained should be suppressed.  For a review of these (unsuccessful) efforts in one case, see U.S. V. Orisakwe, 2013 WL 4836084.

by
Jill Paperno, Second Assistant Monroe County Public Defender 
and author of  Representing the Accused: A Practical Guide to Criminal Defense

As described in an earlier post, the law provides guidance as to which decisions are made by a client and which are made by the defense attorney.  Decisions that are considered fundamental - generally those that are granted to a defendant by the Constitution, or cases interpreting the Constitution - are to be made by the client.  Ideally (and we should be striving for the ideal) those decisions are made after thoughtful, informed and considered review with counsel.  Decisions that are strategic are to be made by the defense attorney.  Ideally (yes, striving again) those decisions are made after thoughtful, informed and considered review with the client.

So which type of decision is the right to testify before the grand jury?  If it is a fundamental right we have to discuss it with our clients and they have to waive the right.  But day after day I see defendants appearing in court whose attorneys have never discussed grand jury testimony with them.  How do I know?  In some cases they are meeting counsel for the first time on a preliminary hearing date even though counsel was assigned before the grand jury date.  In the holding area they ask me, a lawyer they don't know, who their lawyer is.  When their case is called the prosecutor presents a grand jury certification to the court, so we know the case went to the grand jury without the client having been advised of grand jury rights.

The right to be prosecuted on an indictment is contained in the state constitution.  (The U.S. Constitution has been interpreted as not requiring indictment for prosecution on all felonies, so different states handle this issue in various ways - see http://campus.udayton.edu/~grandjur/stategj/funcsgj.htm) And the New York state Constitution does not include the right of a defendant to testify - that is contained in the Criminal Procedure Law, section 190.50.  So this right looks different than some of the other rights we know are fundamental and are protected by the Constitution, and which only a client can waive.  And grand jury decision-making happens behind the scenes.  There is no judge asking for the client's decision or whether the client is aware of the right.  (But remember - the decision of whether to appeal is not in the Constitution and happens behind the scenes, and it is fundamental.)

There is a split among the attorneys I know about whether the right to testify before the grand jury is a fundamental right.  I believe it is for the reasons that follow.

The Court of Appeals has stated that it is not per se ineffective assistance for defense counsel to fail to facilitate a client's appearance before the grand jury.

This case is indistinguishable from People v. Wiggins, 89 N.Y.2d 872, 873, 653 N.Y.S.2d 91, 675 N.E.2d 845 (1996), where defense counsel arrived at the grand jury after the indictment had been voted. Indeed, until the indictment was handed down there was no felony charged. Here, defense counsel also failed to secure defendant's appearance before the grand jury In Wiggins, we held that failure of defense counsel to facilitate defendant's testimony before the grand jury does not, per se, amount to the denial of effective assistance of counsel. In this case, defendant failed to establish that he was prejudiced by the failure of his attorney to effectuate his appearance before the grand jury. Significantly, there is no claim that had he testified in the grand jury, the outcome would have been different.

People v. Simmons, 10 NY3d 946.

But there are cases that reverse convictions when defense counsel has failed to effectuate a client's desire to testify before the grand jury.  In a Kings County Court 2002 decision Judge  Reichbach noted the lack of clarity and guidance from the courts on this issue:

The initial question presented is whether, as a matter of constitutional right, the decision to testify before the Grand Jury is one that can only be made or waived by the defendant. This requires a determination as to whether or not a defendant's right to testify in the Grand Jury is a fundamental or constitutional one. Both the United States Supreme Court and New York's Court of Appeals have enumerated these decisions that are so fundamental that they can only be made by the defendant, not his attorney. The United States Supreme Court in Jones v. Barnes, 463 U.S. 745, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983), noted that decisions such as whether to waive a jury, whether to testify at trial and whether to take an appeal are so fundamental that they can only be made by the defendant (citing ABA Standards on Criminal Justice, On Defense Functions, Standard 4–5.2 [Second Edition] ). In People v. White, 73 N.Y.2d 468, 541 N.Y.S.2d 749, 539 N.E.2d 577 (1989), New York's Court of Appeals likewise found that fundamental decisions include whether to plead guilty, whether to waive a jury trial, whether to testify on one's behalf and whether to take an appeal. The Court of Appeals in People v. Ferguson, 67 N.Y.2d 383, 502 N.Y.S.2d 972, 494 N.E.2d 77 (1986) indicated that this list was not exhaustive. The Court of Appeals has made it plain that the right to testify before a Grand Jury is not one of constitutional dimension, but rather a right provided by statute.   People v. Smith, 87 N.Y.2d 715, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996). While not of constitutional dimension, nevertheless the Court of Appeals has determined it to be a “valued” right, a “significant and substantial” right which must be “scrupulously protected”. People v. Evans, 79 N.Y.2d 407, 414, 583 N.Y.S.2d 358, 592 N.E.2d 1362 (1992); People v. Smith, 87 N.Y.2d 715, 720, 721, 642 N.Y.S.2d 568, 665 N.E.2d 138 (1996); People v. Corrigan, 80 N.Y.2d 326, 332, 590 N.Y.S.2d 174, 604 N.E.2d 723 (1992). While clearly, an attorney has the right to make day-to-day decisions governing a case, and those decisions will be binding on a client, People v. Jordan, 96 A.D.2d 1060, 466 N.Y.S.2d 486 (2nd Dept., 1983) there is apparently no New York authority indicating whether this significant statutory right to testify before the Grand Jury, once invoked, may be waived without the defendant's permission.

People v. Edwards, 192 Misc.2d 473, 475-76, 747 N.Y.S.2d 688, 690 (N.Y.Sup.,2002)

In a great summary of the law and conclusions to be drawn about whether a client gets to make his decision, Judge Reichbach, citing numerous cases, wrote:

Many cases hold that a failure by defense counsel to secure a client's right to  testify before the Grand Jury by failing to file a cross Grand Jury notice is not, by itself, ineffective assistance of counsel. People v. Sturgis, 199 A.D.2d 549, 606 N.Y.S.2d 241 (2nd Dept., 1993); People v. Bundy, 186 A.D.2d 357, 588 N.Y.S.2d 167 (1st Dept., 1992); People v. Otis, 186 A.D.2d 828, 589 N.Y.S.2d 816 (2nd Dept., 1992) .... On the other hand, appellate courts have found that subsequent to the filing of a cross Grand Jury Notice, errors by counsel which have the effect of precluding the defendant from testifying constitute ineffective assistance requiring dismissal of the indictment. People v. Jimenez, 180 A.D.2d 757, 580 N.Y.S.2d 393 (2nd Dept., 1992); People v. Lincoln, 80 A.D.2d 877, 436 N.Y.S.2d 782 (2nd Dept., 1981); People v. Moskowicz, 192 A.D.2d 317, 595 N.Y.S.2d 464 (1st Dept., 1993).

Judge Reichbach continued by setting forth his interpretation for the basis for these two seemingly inconsistent lines of cases, and reconciling them.  He found that the distinction was between cases in which a defendant's desire to testify had already been communicated to the prosecution, in which failure of counsel to act was clearly in conflict with a client's stated interest, in contrast with those where no such notice had been filed.  (But he also noted another court's seemingly accurate but differing conclusion that this rationale wold find it was worse to do half the job - serving notice but not following through - than no job at all.  And that makes no sense, right?) (For a review of factors leading a different court to conclude the decision is strategic, see People v. Cox, 2007 WL 5160499 (N.Y.Sup.), 4 (N.Y.Sup.,2007.))

So if failing to inform a client is not per se ineffectiveness, are we off the hook?  I don't think so, for a few reasons.

First, if the client has this right and we are striving to provide client centered representation, honoring our clients' rights to be involved in charting their course, it seems completely inconsistent to fail to advise them of this process and their right to participate in it.

Second, the statute clearly protects a client's right to testify before the grand jury. The decisions that fail to find ineffectiveness when a client claims the attorney did not enable him or her to testify before the grand jury seem to reflect that the issue was not preserved, or raised on the record below.  Of course it wasn’t – the client was not aware it was an issue or had to be raised.  Perhaps the client didn’t even know s/he had the right to testify. 

And in the recent Fourth Department decision, People v. Brumfield (Fourth Dept., Sept. 27 2013), the Court emphasized the importance of a defendant's right to testify before the grand jury, stating,

It is well settled that a defendant’s statutory right to testify before the grand jury “ ‘must be scrupulously protected’ ” (People v Smith, 87 NY2d 715, 721, quoting People v Corrigan, 80 NY2d 326, 332). We conclude that, because defendant complied with the requirements of CPL 190.50 (5) but was nevertheless denied his right to testify before the grand jury, the court erred in denying defendant’s motion to dismiss the indictment.

Additionally, if we are required to discuss the grand jury right with a client, how can we then decide the client does not get to exercise that right.

Given this emphasis on the importance of a defendant's right to testify before the grand jury, we should be at least as vigilant in protecting it as the Fourth Department, right?’

And if the failure of the prosecution to allow a defendant to testify is a violation of a client’s rights so substantial that an indictment gets dismissed when the defendant is deprived of that right, how is it less of a violation if we cause the deprivation?

Finally – sometimes we get it wrong.  In a case I handled recently, I begged and pleaded with a client not to testify.  The client went in (after we prepared for the testimony I so feared) and the case was no billed.  What if I had decided not to let him testify?

The alternative view raises the concern that if we let our clients testify in ways that damage their cases, then we may be held ineffective.  But if we write those CYA letters to the file and client, then how is this different from any other circumstance when our client has made a fundamental decision that we disagree with –such as taking a case to trial when we believe the evidence against them is rock solid and they should be pleading.

So although the right is not usually described as a fundamental right, I believe that it is – and that at some point the Court of Appeals will recognize the obligation of defense counsel to honor a client’s decision to testify even if defense counsel disagrees.