The California Supreme Court laid out new rules for third party subpoenas.
Whether you’re a fan of social media or not, there is no denying that it has become a major part of our modern society. People use it to get news, share updates, sell things, and connect with friends. It is also heavily used in criminal cases. For example, the police may search a suspect’s social media profiles to find evidence used to support criminal charges. A bigger question has been whether and how criminal defendants can obtain information from social media to use in their own defense.
It is easy enough for a criminal defense attorney in Riverside, CA or a private investigator to do a search of witnesses’ social media, or even to look up information on the victim or prospective jurors. Yet if the information isn’t public, it can be harder to obtain it — even when that content is necessary for an individual’s defense.
Under California law, various officials and people (including criminal defense attorneys) can issue a subpoena duces tecum. This type of subpoena is a legal request for the recipient to produce documents. In the social media context, a criminal defense attorney in Riverside, CA may issue a subpoena duces tecum to Facebook, Twitter, or another social media company. This may be done for any number of reasons. For example, if a witness claims that they saw the defendant commit a crime, but the defendant knows that the witness wasn’t even there, evidence from social media may show that the witness was elsewhere at the time that the alleged crime occurred.
Facebook and other social media companies have resisted turning over this information to defendants in criminal cases. Recently, the issue came up before the California Supreme Court after Facebook tried to quash (dismiss) a subpoena in a criminal case. The Court found that defendants must establish good cause to acquire the subpoenaed records. A court will look to 7 factors to determine if the defendant has shown good cause:
- Has the defendant carried his burden of showing a plausible justification for acquiring documents from a third party by presenting specific facts demonstrating that the subpoenaed documents are admissible or might lead to admissible evidence that will reasonably assist the defendant in preparing his defense? Or does the subpoena amount to an impermissible fishing expedition?
- Is the sought material adequately described and not overly broad?
- Is the material reasonably available to the entity from which it is sought (and not readily available to the defendant from other sources)?
- Would production of the requested materials violate a third party’s confidentiality or privacy rights or intrude upon any protected governmental interest?
- Is defendant’s request timely? Or, alternatively, is the request premature?
- Would the time required to produce the requested information necessitate an unreasonable delay of defendant’s trial?
- Would production of the records containing the requested information place an unreasonable burden on the third party?
In other words, the defendant has to do something more than just guess that the social media company (or another third party) may have records. They need to present facts showing that the documents that they seek are admissible, or could lead to admissible evidence, and make sure that their request is not too broad.
In the example above, if the defendant was just guessing that the eyewitness wasn’t really at the party and that social media would show otherwise, the subpoena might be quashed for failure to show good cause. But if the defendant could produce witnesses who will affirm that they were with the alleged witness at the time, or perhaps a screenshot of a “check in” at another location, that may be enough to show good cause.
These issues are technical — and highlight the importance of having a skilled criminal defense attorney in Riverside, CA who understands the law and who can put together a strong argument for getting the documents that you need for your defense. At the Chambers Law Firm, we are experienced in all phases of the criminal justice process, including gathering evidence to put together factual and legal defenses. Contact us today at 714-760-4088 or dchambers@clfca.com to schedule a free initial consultation with a member of our team.
