A recent blog post from Professor Jeff Welty with the UNC School of Government raises some interesting issues regarding discovery in this technological age. As Professor Welty notes, law enforcement officers could make statements or notes via text message that are relevant to a criminal case.
Pursuant to North Carolina General Statutes Section 15A-903, prosecutors must turn over the notes of law enforcement as well as any witness statements. Similarly, in federal court, Rule 16 of the Federal Rules of Criminal Procedure requires that the prosecution turn over notes and reports material to the defense when those items are in the care, custody, and control of the prosecution. In addition, the prosecution must always turn over exculpatory material to the defense.
The discovery of text messages could be especially important in drug cases, including cases involving heroin and the current opioid crisis, when law enforcement officers utilize the assistance of informants to make controlled purchases of narcotics from targets. If a narcotics detective corresponds with an informant via text message before, during, or after a controlled purchase, then the message(s) could provide a wealth of information regarding the mindset of the detective and the informant as well as the facts of the case.
For example, there could be references to any potential benefit that the informant might receive as a result of his/her cooperation (relevant to the issue of bias). The messages could also include real time statements by the informant regarding the nature of the alleged transaction and the individuals present. This information could help a criminal defense attorney to cross-examine the narcotics detective as well as the informant.
Thus, it is important for criminal defense attorneys to request text messages from the prosecution as part of discovery. These messages could be especially valuable in drug cases. If the messages were not preserved, this fact would be very important to establish in cross-examination and could (depending on the circumstances) have even larger implications on the case.
Criminal defense attorneys should leave no stone unturned when representing individuals charged with criminal offenses. The advances in modern technology provide new ways for law enforcement officers and witnesses to make statements relevant to a case. It is vital to use the discovery process to determine whether there is relevant information in text messages, emails, and social media posts.
***NOTE: This information does not create an attorney/client relationship for a specific case nor does it constitute legal advice for any specific case or situation. It is for informational purposes only. For assistance with a state or federal criminal case, please contact Weede Law, PLLC at 919-882-6168 for a free initial consultation.