FACEBOOK v. S.C.

Real Parties in Interest, Derrick D. Hunter and Lee Sullivan, Opening Brief on the Merits

Cal.January 15, 2016

No. $230051 IN THE SUPREME COURT OF THE STATE OF CALIFORNIA FACEBOOK,INC.,et al., Petitioners, V. SUPERIOR COURT OF THE STATE OF CALIFORNIA, SUPREME COURT SAN FRANCISCO | [ c ry Respondent. JAN 15 2016 DERRICK D. HUNTER and LEE SULLIVAN, ; a Erank A. McGuire Clerk Real Parties in Interest. — Seoul REAL PARTIES LEE SULLIVAN AND DERRICK HUNTER’S OPENING BRIEF ON THE MERITS From the Published Opinion of the Court of Appeal, First Appellate District, Division Five, No. A144315 San Francisco San Francisco Superior Court Nos. 13035657, 13035658.) The Honorable Bruce Chan, Judge, Dept. 22 JANELLE E. CAYWOOD SUSAN B. KAPLAN (CBN: 189980) (CBN: 57445) 3223 Webster Street 214 Duboce Street San Francisco CA, 94123 San Francisco, CA 94103 Tel. (415) 370-2673 Tel. (415) 271-5944 Fax. (888) 263-0456 Fax. (510) 524-1657 Email: janelle@caywoodlaw.com Email: sbkapl@yahoo.com Attorney for Real Party Attorney for Real Party Lee Sullivan Lee Sullivan JOSE PERICLES UMALI (CBN: 118434) 507 Polk Street, Suite 340 San Francisco, CA 94102 Tel. (415) 398-5750 Fax. (415) 771-6734 Email: umali-law@att,net Attorney for Real Party Derrick Hunter TABLE OF CONTENTS Page(s) TABLE OF AUTHORITIES ...........00 00000 c cece eee eeeeeeeee iv ISSUES PRESENTED... 26.ccc cece cece eee eeeeeees I STATEMENT OF THE CASE ........ 2.000000 ccc cece eee eee ee ence 2 STATEMENTOF FACTS . 0.0.0... cece ccc cence eee cenneaee7 ARGUMENT..... 00.ceette t bccn eee enn n eng 9 1. INTRODUCTION ...0 0.00.cece eee eee9 Il. THE COURT OF APPEAL ERRED IN RULING THAT CRIMINAL DEFENDANTSDO NOT HAVE A CONSTITUTIONAL RIGHT TO PRETRIAL, JUDICIAL REVIEW OF SOCIAL MEDIA RECORDS TO ENSURE RECORDS NECESSARYTO A FAIR TRIAL ARE PRODUCED TO THE DEFENSE ........................ 12 A. This Court is Authorized to Interpret the Federal Constitution on the Issue of Whether a Criminal Defendant’s Has A Constitutional Right to Pretrial Access to Social Media Records ...... 13 B. Real Parties’ Due Process Right to a Fair Trial and to Present a Meaningful Defense Requires Access to Social Media Records Before Trial.......... 15 Cc. Denying Pretrial Access to Social Media Records to the Defense, but not Prosecution, Violates the Due Process Clause under Wardius v. Oregon ..........21 D. The Compulsory Process Clause Compels Pretrial Production of Social Media Records Sought By Third-Party Subpoena.............................25 iii TABLE OF CONTENTS(CONT.) E. Social Media Records Should be Produced Pretrial Because the Sixth Amendment Guarantees a Criminal Defendant Effective Assistance of Counselin Plea Negotiations Which Will Not Occur If Exculpatory Social Media Recordsare Inaccessible To the Defense Until Midway Through a Trial........ 32 F. This Court Should Overrule Hammon, or in the Alternative, Limit Hammon to the Psychotherapy- Patient Records, and Hold that a Criminal Defendant’s Right to Confrontation Under the Sixth Amendment Includes The Right to Pretrial Access to Evidence Necessary to Cross-Examine Witnesses Given the United States Supreme Court Has Not Reached This Issue ...... 0.0...ee cece eens 34 CONCLUSION . 2...cenceence ee naes 44 Iv TABLE OF AUTHORITIES Cases Page(s) Alford v. Superior Court, 29 Cal.4th 1033(2003)......0.ene ee cent ee ecenereateens27 Barrett v. Rosenthal 40 Cal.4th 33 (2006) ...........cc ccc cece ec ee nescence ee estesteeesssee lS Brady v. Maryland 373 U.S. 83 (1963) 20... ccc cece cence ence cena eee en ee sesseesetenteseeDo Chambers v. Mississippi, 410 USS. 284 (1973)... cece cece nee e eee eee eee eeteneeneeeees 15, 18 Crane v. Kentucky 476 U.S. 673 (1986 20.0... ee cece tence nenee eee eeeeeenenenees 16 Davis v. Alaska, 415 U.S. 308 (1974)... cece eee eee ee renee teat eee ee eee ew ees35-36 Department ofMotor Vehicles v. Superior Court ofLos Angeles County, 100 Cal.App.4th 363 (2002)........ 0. eeee eee ence ee reeeeees 18-19 Evans v. Superior Court 11 Cal.3d 617 (1974) 200.cececee cece cts seeeeneseeeneenranela Hill v. Lockhart ATA U.S. 52 (1985) occ cece cece ence eee c een esseesseeeessersesesseeees «22 Holmes v. South Carolina, 547 U.S. 319 (2006)... ...c ccc cece cece eee ce cecetececesteseessetstrereeseere LO Inre Koehne 54 Cal.2d 757 (1963) .... ccc ccc cce ccc e ence ccna ecesesseeeeseeentrsteessereesQO Inre Littlefield 5 Cal.4th 122 (1993) ......ccccecccc ccc ec cece ec ccneseeeeseeseseseeseesseesees20) Jones v. Superior Court 58 Cal.2d 56 (1962) ....oc eccccee ec ee ccneeseeneeesseseesensseeeens Kling v. Superior Court, 29 Cal.4th 1068 (2010)...ceceeee Padilla v. Kentucky 559 U.S. 356 (2010) 20cence cee cee eee eee eeeneeeseeneneesees Marks v. United States 430 U.S. 188 (1977) oo...ees Missouri v. Frye 132 S.Ct. 1399 (2012) ..eccceeceeecesseeeceeesseecseeees Montejo v. Louisiana 556 U.S.778 (2009) 2.0... eee ccc cree cee ee ence ae eceeseeesseseaeeneens Pennsylvania v. Ritchie, 480 U.S. 39 (1987)........ People v. Bradley 1 Cal.3d 80 (1969) 2...cee cece eceseeeeeernneres People v. Cox, 53 Cal.3d 618 (1991)........ eee People v. Hogan 31 Cal.3d 815 (1982) ....ccccececcececeeecesevsesesessseesssseessetessse People v. Doolin, 45 Cal.4th 390 (2009)............ People v. Hammon 15 Cal.4th 117 (1997) uu... People v. Superior Court (Barrett) 17 27 32 vevseee OT SYLSL| 32 Leet e eee eceeceeeeneeaeeeeseessteesses passim .. 13 .. 40 25 40 eceeeccecenececneeeeacecseeereseeneeseeterersaespassim 80 Cal.App. 4" 1305 (2000)......... 0. cee eceeeeeeeeceeeeneeneneneeens27 Vi Pitchess v. Superior Court, 11 Cal. 3d 531 (1974)...ceenceeee eteeneneeraees27, 29 Rock v. Arkansas 483 U.S. 44 (1987) ....ccceccece ccc n eee beeen e eee eet en ee ea sneenaneraes 17, 21 Rubio v. Superior Court, 50 Cal. 3d 785 (1990)........ 0... cece ecc ee eee ecee ea cnerereeeserssessees 19-20 Strickland v. Washington 466 U.S. 668 (1984) 0.0...eee cece een ee ertecsssatseetsserseneneeDD Taylorv. Illinois A84 US. 683 (1988) 20.0... cece ccc ee eee cee ec een cneersersnsssecsasssessssenseeQO United States v. Bahamonde United States v. Nixon, 418 U.S. 683(1974)... occ cece cece cee ee nena eee etna ee penenerseees29, 30 Wardius v. Oregon, 412 U.S. 470 (1973)... . ccc ccc ence cece e ete e sees eeeeessrenssseereeed b= 23 Washington v. Texas, 388 U.S. 14 (1967)... .. ccc ccc ccc ee eee ee en crea eee casseanensrerseesssssessntareeensDD Weatherford v. Bursey 429 U.S. 545 (1977) oo. c ccc ec ce eee c cence eee et eens sesesseessesssenseeeseesee LZ U.S. v Burr (CCD Va 1807) 25 F. Cas. 30 ...csccseseseceseessesesecseesseenessenenererseeraee29, 30 Federal Statutes 18 U.S.C. § 2701... cece cece cece erence enee eee e nena ene en ees 10, 21 18 U.S.C. § 2702.0... cece cece cece eee ne een eee eene tee eneeneees 10, 21 18 U.S.C. § 2703.00... cece cece cence eee terete cent nne nen ne eens en eee 10, 21 Vil California Statutes California Penal Code §§ 1326-1327 «2.0.0.0... cece cece eeneeetaes 3 California Penal Code § 1524 2.2.0... ccc ccc ccc cece cee ence ene eneeeees26, 27 Evidence Code § 1014 2.0... ccc e eee e cece nce ee cece ene ene e nen ceed eesssenseneeee2, 42 Vili IN THE SUPREME COURT OF THE STATE OF CALIFORNIA FACEBOOK,INC.,, etal., No. 8230051 Petitioners, From the published opinion of the Court of Appeal, First Appellate District, Division Five Vv. DCA No. A144315 (San Francisco Superior Court Nos. 13035657, 13035658) SUPERIOR COURT OF THE STATE OF CALIFORNIA, Respondent. DERRICK D. HUNTER and LEE SULLIVAN, Real Parties in Interest. REAL PARTIES’ OPENING BRIEF ON THE MERITS TO: THE HONORABLETANI G. CANTIL-SAKAUYE, CHIEF JUSTICE, AND THE HONORABLE ASSOCIATE JUSTICES OF THE SUPREME COURTOF THE STATE OF CALIFORNIA ISSUES PRESENTED 1.) Are criminal defendants constitutionally entitled to pretrial access to social media records sought by subpoenathat are necessary fora fairtrial, to present a complete defense, to effective assistance of counsel, to compulsory process, and to confront and cross-examine witnesses as guaranteed by Fifth, Sixth, and Fourteenth Amendments ofthe United States Constitution, or can social media records only be subpoenaed during trial as the Court ofAppeal held below? 2.) Should this Court overrule People v. Hammon (1997) 15 Cal.4th 117, because it was wrongly decided on constitutional grounds and because delaying access to records necessary to defend a case until the middle of trial does not promote the orderly administration ofjustice? Alternatively, should this Court limit Hammonto records subject to the psychotherapist- patient privilege under Evidence Code section 1014? STATEMENT OF THE CASE Real parties in interest, Lee Sullivan and Derrick Hunter, are indicted and awaiting trial for the murder of Joaquan Rice (Pen. Code § 187) and the attempted murder (Pen Code § 664/187) of minor, B.K. The charges stem from a drive-by shooting that occurred on June 24, 2013, at a bus stop located in the Bayview District of San Francisco. The San Francisco District Attorney’s theory of the case is that the crimes were committed for the benefit of “Big Block”an alleged criminal street gang.’ Quincy H., 1 Gang allegations pursuant to Penal Code sections 12022.53(d), 120022.53(e)(1), and Penal Code section 186.22 (b)(1), as well as other 2 Derrick Hunter’s 14-year old brother, confessed to the shooting to police inspectors shortly after it occurred, explaining that he shot Mr. Rice because he feared Mr Rice wouldkill him first if he did not act. According to Quincy, Mr. Rice repeatedly threatened and bullied him athis job, at his home, and on social media, including tagging him in violent posts on Facebook and Instagram. Quincy told police that Mr. Sullivan was not in the vehicle when the shooting occurred. Although the shooting occurred in front of a crowd, no eyewitnesses placed Mr. Sullivan at the scene. 7 (1 AE 124-128, 134-137.) The sole witness who implicates Mr. Sullivan in the incident is Ms. Lee, Mr. Sullivan’s jilted former girlfriend who had rented the vehicle used in the shooting and who wasdetained by police driving alone in the car seven minutes after the shooting occurred. Several eyewitnessestold police a woman wasdriving the vehicle when shots were fired. Importantly, Ms. Lee did not implicate Mr. Sullivan in the shooting until several monthsafter the incident, when police threatened to charge Ms. Lee with murderif she did not implicate Mr. Sullivan. (1 AE 87-88.) In preparation for jury trial, counsel for Mr. Sullivan servedthird- party subpoenas duces tecum (Pen. Code, §1326) on Facebook, Twitter, and Instagram seeking records from the social media accounts held by the enhancements were alleged. 2 Quincy wastried in juvenile court for the murder of Mr. Rice and attempted murder ofBenjanay K. The petition was sustained on all counts. deceased alleged victim, Mr. Rice, as well as Ms. Lee. (1 AE 12-18, 53-56.) Mr.Sullivan simultaneously attempted to serve Ms. Lee with subpoena duces tecum seeking production of her social media records, but was unable to locate her for service either in person or through the San Francisco District Attorney despite diligent efforts. (1 AE 107.) Facebook, Instagram, and Twitter, moved to quash the subpoenas on groundsthat disclosure is prohibited under the Stored Communications Act (hereafter “SCA”) set forth in 18 U.S.C. § 2701, et. seq. The social media providers argued that the SCA is an absolute bar to producing recordsto criminal defendants, and that petitioners need only respond to search warrants or court orders obtained by the police or prosecutorial agencies. (1 AE 1-8.) Real party, Sullivan, filed an Opposition to social media providers’ Motions to Quash,asserting that the SCA mustyield to a criminal defendant’s constitutional right to compulsory process, to present a complete defense, and to due process guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution. Real party, Sullivan, made a detailed offer ofproof as to the relevance of the records sought and requested that the records be produced for an in camera review by respondent court. Specifically, counsel for Sullivan asserted Ms. Lee’s social media records were relevant to impeach her with prior acts of violence as well as to show bias, and to corroborate Sullivan’s defense that she falsely implicated him in the murder because she wasin a jealousrage. Counsel for Sullivan also made a good cause showing the Mr. Rice’s records were relevant to impeach the prosecution’s gang expert and because the records are affirmative evidence demonstrating the shooting was not gang-related. (1 AE 84-105.)° On January 7, 2015, respondent court, the Honorable Bruce Chan, issued a tentative ruling denying petitioners’ Motions to Quash. On January 22, 2015, the day beforejury trial was to commence, respondentcourt affirmed the tentative ruling and denied petitioners’ Motions to Quash ruling that notwithstanding the SCA, defendants, Sullivan and Hunter, have an independentconstitutional right to access materials necessary to defend their case. Respondent court found that social media providers’ argumentthat it should be excused from producing the information sought by the defendant on the groundsthat the information was available from other sources was not compelling in light of the fact that Mr. Rice was dead and Ms. Lee could not be forced to authenticate her social media posts under the Fifth Amendment because they were incriminating in nature. Respondent court ordered the records produced for in camera review under Penal Codesection 1326 on February 27, 2015. (1 AE 264-276; Supp. AE 286-287.) On February 24, 2015, Facebook, Instagram, and Twitter filed a 3 In support of his Opposition, Mr. Sullivan submitted a declaration from Quincy H.’s attorney, Rebecca Young, whostated that Quincy H. was denied his constitutional right to due process and to present a complete defense at his separate juvenile trial for the murder and attempted murder ofMr. Rice and Ms.K, respectively, because when Ms.Lee wascalled to testify as a witness, she refused to authenticate her social media posts that the defense had gathered in which Ms. Lee threatened others with violence. Counsel for Quincy H. was unable to lay a foundation to admit the records into evidence perthe trial judge’s ruling andthe critical defense evidence was not admitted at trial. (1 AE 196-197.) petition for writ of mandate and request for a stay of the productionorder in the Court of Appeal, First Appellate District, asserting that the respondent court abusedits discretion in denying petitioners’ Motion to Quash. On February 26, 2015, the Court of Appeal issued a stay of respondent court’s production order pending consideration ofthe petition. Sullivan submitted an answer which Hunter joined. An order to show cause to the respondent court was issued on March 30, 2015. Real party, Sullivan, filed a return to which Hunter joined. After briefing by the parties and amicus counsel, the Court ofAppeal granted the petition for writ of mandate and issued a published opinion on September 8, 2015 (Exhibit A,) holding that although Hunter and Sullivan maybe constitutionally entitled to social media recordsattrial notwithstanding the SCA, under Peoplev. Hammon(1997) 15 Cal.4th 117, they had no constitutional right to pretrial access to social media records under the Compulsory Process Clause, the DueProcess Clause, or the Sixth Amendment’s Confrontation Clause. On October 19, 2015, real party, Sullivan, filed a petition for review in this Court, which Hunter joined, seeking review of the Court ofAppeal’s published opinion that criminal defendants are not constitutionally entitled to subpoena social media records pretrial even upon a showing of good cause, even following an in camera review by respondent court, and requesting that Hammonbeoverruledor limited. Social media providers filed an answerto the petition for review on November9, 2015. Real party, Sullivan,filed a reply on November 19, 2015. On December16, 2015, this Court granted the petition for review. STATEMENT OF FACTS On June 24, 2013, at 12:55 pm, a green Ford Escape,rented by, Renesha Lee, passed by a bus stop located at the intersection of Westpoint and Middleburg Streets in San Francisco. Shots were fired from inside the vehicle by two shooters. Jaquan Rice, Jr., (aka “Pistol Poppin Dutch”) was killed andhis girlfriend, Ms. K, a minor, wasseriously injured. Ms. K did not see who shot her. Ms. Lee’s vehicle was identified by surveillance video and stopped by San Francisco police at 1:02 p.m, seven minutes after the shooting occurredat the intersection of George Court and Ingalls. Ms. Lee was alone in the car. (1 AE 87.) Although the videos of the scene captured the shooting, no arrests were made because of the poorfilm quality. (1 AE 107.) The videos show one individual wearing a light colored hooded sweatshirt, shooting a hand gun from the rear window ofthe drivers side. A second individual wearing a black hat, jacket, and pants, exited the rear passenger side door and shot a hand gun with a large magazine attached, from behind therearofthe vehicle. The driver’s was not visible because the window wasrolled up. (1 AE 87-88.) Quincy H., who was 14 years-old, confessed to the shooting when detained by police after several eyewitnessesidentified him as one of the shooters. Quincy H.told the officers that he shot Mr. Rice because Mr. Rice repeatedly threatened him athis job, at his home, and on social media, including Facebook and Instagram. Mr. Rice tagged Quincy H.and others in a video with gunsin it on Instagram which scared Quincy. He believed Mr.Rice would kill him if he did not act first. Quincy told police that Mr. Sullivan was not in the car when the shooting occurred. He identified the other shooter as “Johnson.” (1 AE 124-128, 134-137.) Ms. Lee is Mr. Sullivan’s ex-girlfriend and the only witness that connects him to the shooting. Ms. Lee gave multiple disparate accounts about what transpired when she wasinterrogated bythe police in the months following the June 24, 2013, shooting. Sheinitially told police that a person she identified as “Man Man”and three male companions approachedhershortly after shots were fired to get them away from the scene. However, on August 10, 2013, when the police threatened to charge her with murder if she did not implicate Mr. Sullivan, Ms. Lee said Mr. Sullivan was with Quincy and Derrick Hunter when they borrowed her car and dropped her off at her home a few minutes before the shooting. Ms. Leehasatall times denied being in the car when the shooting occurred despite that she wasin the only person in the car when it was stopped and several percipient witnesses told the police a woman was driving the car when shots were fired. (1 AE 88.) Noneofthe percipient witnesses at the bus stop placed Mr. Sullivan in the vehicle or near the crime scene when the shooting occurred. (1 AE 88.) At the grand jury hearing, the prosecution’s gang expert, Leonard Broberg, of San Francisco Police Department’s Gang Task Force, relied heavily on social media records he obtained from Facebook, Instagram, and Twitter in forming his opinion that the murder and attempted murder was committed for the benefit of Big Block, a criminal street gang in support of the gang allegations alleged pursuant to Penal Code section 186.22(b)(1). The prosecution’s theory of the case was that Mr. Sullivan and the Hunter brothers were members of Big Block criminal gang and Mr.Rice waskilled because he was a memberofrival gang, West Mob, and because Mr. Rice publicly threatened QuincyH. on social media. (1 AE 88.). ARGUMENT I. INTRODUCTION This case presents an important question of law regarding whether criminal defendants have the constitutional right to pretrial access to social media records necessary fora fair trial and to present a complete defense under the Due Process Clause of Fifth Amendment, as well as under the Compulsory Process and Confrontation Clauses ofthe Sixth Amendment guaranteed to the states by the Fourteenth Amendment. Given the 4 At the grand jury, Broberg testified about the important role social media played in the present case: Well, as of all society, gangsters are now in the 21* century and they have taken on a new aspect of being gangbangers, and they do somethingtheycall cyber banging. They will actually be gangsters on the internet. They will issue challenges; will showsigns of disrespect, whetherit’s via images or whetherit’s via the written word. . . Facebook, Instagram, Socialcam, Vine.. Thereis any numberofplaces they will post videos, they will post images, and of course, they will do the written word. They will disrespect each other in cyber space. (1 AE 93-94) explosion of social media use in recent years, trial courts throughout California and nation are grappling with whether and when criminal defendants can subpoena social media records necessary to defend a case in light of the fact that social media records are increasingly offered by the prosecution as evidence without parallel access for criminal defendants under the SCA. In this case, the Court of Appeal substantively addressed for the first time in the nation, a criminal defendant’s right to access social media records under the SCA andruled that a criminal defendant’s constitutional right to a fair trial may require disclosure of social media recordsattrial notwithstanding the SCA’s provision prohibiting disclosure of electronic records except to law enforcement. (18 U.S.C. §§ 2702, 2703, et seq.) Real parties agree that the SCA mustyield to a criminal defendant’s constitutional right to a fair trial. However, real parties challenge the Court ofAppeal’s ruling insofar as it held that criminal defendants do not have a constitutional right to pretrial access to this evidence and may only subpoena social media records during trial following an in camera review by the trial court. Realparty, Sullivan, respectfully asserts the Court ofAppealis wrong as a matter of constitutional law andalso in practicality because denying pretrial access does not promotethe fair administration or justice, nor the orderly ascertainmentofthe truth. Instead, the Court ofAppeal’s ruling ensures the opposite by delaying disclosure untilafter trial commences and then requiring continuances as they become necessary, as 10 indeed they will given that virtually all criminal cases use social media records as evidence and social media providers do not readily produce the records to the trial courts for review. Moreover, real parties assert that delaying access to social media recordsuntil trial without affording defense counsel reasonablepretrial investigation of the records, which are voluminous, impinges on defendants’ ability to meaningfully challenge the state’s evidence and, thus, runs afoul of defendants’ constitutionalrights to receive a fairtrial, to defend a case, to effective assistance of counsel, to compulsory process, and to effectively confront and cross-examine witnesses. Whethera criminal defendanthas a constitutional rightto pretrial access to social media recordsis an area that has not been squarely decided by the United States Supreme Court. Give that this Court is under a solemn obligation to interpret and implement the United States Constitution, it is incumbent on this Court to rule in areas of law where the United States Supreme Court has defaulted to protect the rights of the criminally accused given the importantrights at stake when previous state and federal courts could not predict the ubiquitousness of social media evidence in criminal courts. Finally, Sullivan and Hunterrespectfully request that People v. Hammon (1997) 15 Cal.4th 1117, be overruled, or at a minimum, limited to records protected by the psycho-therapist patient privilege pursuant to Evidence Code section 1014. In ruling that criminal defendants do not have a constitutional right to pretrial access to social media records, the Court of 11 Appealrelied heavily upon People v. Hammon (1997) 15 Cal.4th 1117, which held that a child molest victim’s confidential psychotherapy records could only be released to a criminal defendantat trial, not pretrial, upon a showing of good cause. Real parties contend Hammon was wrongly decided becauseit has created logistical problemsin trial courts for the past 18 years, and also because criminal defendants do, in fact, have a constitutional right to pretrial access to evidence necessary to defendhis or her case, as real parties argue here. The expansion ofHammonto include social media records will not only cause unnecessary chaos and backlog in criminal courts but will deny criminal defendants, the majority of whom are indigent, the ability to meaningfully challenge the state’s evidence to demonstrate innocenceattrial. tl. THE COURT OF APPEAL ERRED IN RULING THAT CRIMINAL DEFENDANTSDO NOT HAVE THE CONSTITUTIONAL RIGHT TO PRETRIAL, JUDICIAL REVIEW OF SOCIAL MEDIA RECORDS TO ENSURE THAT RECORDS NECESSARYFOR A FAIR TRIAL ARE PRODUCED TO THE DEFENSE The Court of Appeal erred whenit ruled that criminal defendants could not subpoenasocial media records until trial on groundsthat the United States Supreme Court has never squarely addressed whether a defendanthas a constitutional right to a pretrial access to evidence from third-parties. The Court of Appeal cites Weatherford v. Bursey (1977) 429 U.S. 545, for the proposition that there is no general constitutional right to discovery in criminal cases. However, Weatherford is inapposite becauseit concerned a prosecutor’s obligation to disclose to the defense unfavorable 12 evidence under a claimed Brady violation. (/d. at 559.) Here, we are not concerned with discovery between the prosecution and the defense, but with a defendant’s right to obtain relevant evidence from third-parties in order to obtain a fair trial and to meaningfully mount a defense. Weatherford, therefore, sheds no light on this issue. A. This Court is Authorized to Interpret the Federal Constitution on the Issue of Whether a Criminal Defendant’s Has A Constitutional Right to Pretrial Access to Social Media Records. It is well-settled that in the absence of controlling United States Supreme Court opinion, state courts can and must make an independent determination of federal law and are not bound by decisions in the lower federal courts. (People v. Bradley (1969) 1 Cal.3d 80, 86; Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58; California Assn. for Health Services at Homev. State Dep’t ofHealth Care Servs (2012) 204 Cal.App.4th 676, 684.) “Although the courts of California are boundbythe decisionsofthe United States Supreme Court interpreting the federal Constitution, they are not boundby the decisions of lower federal courts, even on federal questions.” (People v. Superior Court (Moore) (1996) 50 Cal. App. 4th 1202, 1211.) Given that the United States Supreme Court has yet to squarely address whetherthereis a constitutional right to access social media records necessary to defend a casepriorto trial, this Court should not hesitate to decide the constitutional issues in light of the important issues at stake for criminal defendants who need social media records to prove innocenceat trial. To that end, Justice Mosk eloquently stated the 13 following in his concurring opinion in Hammon, in which hearguedthat the this Court should hold that the Sixth Amendmentright to confrontation includesthe right to pretrial access to materials necessary to cross-examine witnesses, despite that the United States Supreme Court in Pennsylvaniav. Ritchie (1987) 480 U.S. 39, had not reached a majority on that issue: It should hardly need mention that “[w]e are under a solemn obligation to interpret and implement the United States Constitution” (People v. Harris (1994) 9 Cal.4th 407, 449 fn.1 (conc. and dis. opn ofMosk J.)) - - especially when, as here, the United States Supreme Court has itself defaulted. “We are no less capable of discharging that duty than any other court. We ‘should disabuse [ourselves] of the notion that in matters ofconstitutional law and criminal procedure we must always play Ginger Rogers to the high court’s FredAstaire—alwaysfollowing and never leading.’ ” (Hammon, supra, 15 Cal. 4" at 1130-1131 (conc. opn. ofMosk,J,) quoting People v. Cahill (1993) 5 Cal.4th 478, 557-558 (conc. and dis. opn. ofKennard, J.) Justice Mosk went on to state that the California Supreme Court should have accepted its responsibility to address whether an evidentiary privilege should yield to a criminal defendant’s right to confrontation in pretrial discovery and not “wait until it recetves word from Washington”to do so. (Hammon, supra, 15 Cal. 4" at 1131 (conc. opn. of Mosk,J.) Real party Sullivan respectfully urges this Court to take the lead in the nation and hold that, upon a showing of good cause, a criminal defendant has a constitutional right to accesspriorto trial, social media records that are necessary for fair trial, to present a complete defense, and that such records must be released to the defense following thetrial court’s in camera review subject to any protective orders deemed necessary by the superior court. 14 B. Real Party Sullivan’s Due Process Right to a Fair Trial and to Present a Meaningful Defense Requires Pretrial Access to Social Media Records The United States Supreme Court has described the rightofthe defendantin a criminaltrial to due process as “the right to afair opportunity to defend against the state’s accusations.” (Chambers v. Mississippi (1973) 410 U.S. 284, 294, emphasis added.) A fair opportunity to defend is required to satisfy due process. Criminal defendants are deniedbasic fairness and stripped ofthe ability to meaningfully defend a case if they are forced to go to trial without first obtaining relevant social media records that are material to cross-examination or support the defense. Dumping thousands of social media records on defense counsel in the middle oftrial with inadequate time to reviewor investigate the materials is deeply unfair to the defendant whoselife and liberty is at stake, as well to as over- burdened public defenders and defense counsel whoare unableto try the case competently while simultaneously reviewing and digesting voluminous records. Defendants must have pretrial access to social media records because they are ubiquitous and play an increasingly importantrole in modern life and in the criminal justice system. Especially for the younger generation, social media is not a separate domain in which fewoflife’s functions are carried out. Rather, it is the hub of their world, the primary vehicle by which opinionsare expressed, friends are made, and newsis shared. Becauseofthe central role these records play, they are voluminous on nature and important to both the prosecution and defensein criminal cases; thus, a defendant must have a parallel right pretrial access to social 15 media records, upon a showing of good cause, following an in camera judicial review, at which time the judge can withhold irrelevant information and issue any protective orders it deems necessary to protect privacy interests. The Court of Appeal’s position that criminal defendants do not have a constitutionalright to pretrial access to evidence does not give appropriate weight to a criminal defendant’s sacrosanct and overarching constitutional right to fundamental fairnessat trial and the right to meaningfully defend a case which are inviolate under the Fifth Amendment and guaranteed to the states by the Fourteenth Amendment. It is axiomatic that a criminal defendant’s right to fundamental fairness and to present a defense hinge on the ability to obtain, prior to trial, evidence in the possession ofthird-parties that is material to the defense, either because the records impeach a prosecution witness or because it demonstrates a defendantis actually innocent of the charges and/or allegations. Whetherrooted directly in the Due Process clause of the Fourteenth Amendmentor in the Compulsory Process clause of the Sixth Amendment, the Constitution guarantees criminal defendants “a meaningful opportunity to present a complete defense.” (Holmes v. South Carolina (2006) 547 U.S. 319, 324; Crane v. Kentucky (1986) 476 U.S. 673, 690, (quoting California v. Trombetta, (1984) 467 U.S. 479, 485; citations omitted). The right of a criminal defendant to due processis "the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. at 294; see Crane v. Kentucky, supra, 476 US.at 690 ("Constitution 16 guarantees criminal defendants 'a meaningful opportunity to present a complete defense'"). A defendant’s right to present a complete defense is abridged by statutes and rules, such as the SCA, that “infring[e] upon a weighty interest of the accused” and are “ ‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” (Rock v. Arkansas (1987) 483 USS. 44, 58, 56.) To meaningfully defend a case, a criminal defendant must usually seek out the truth immediately. He or she cannot wait until the caseis called to trial. A defense lawyer cannot develop a cogenttrial strategy, decide on what defense to pursue, how to conduct voir dire, do an opening statement, or even announceready fortrial, unless he or she can review the relevant evidenceprior to trial and investigate leads that may exonerate the defendant or underminethe credibility of witnesses. Moreover, delaying disclosure of social media records until trial will lead to mistrial after mistrial if continuances are sought duringtrial so the parties can litigate subpoenasfor social media records, to allow time for trial courts to conduct in camera reviews, and for defense counselto investigate information gleaned from the social media records, because ofjuror attrition due to long mid-trial delays. Criminal defendants cannot mount anintelligent defense if voluminous social media records are received duringtrial the contents of which may changethe defense entirely midway through thetrial. Forcing defendants to wait until trial to access social media records is unworkable, does not promote the “orderly ascertainmentofthe truth” (Jones v. Superior Court (1962) 58 Cal.2d 56, 60,) which is best served by disclosure prior to 17 trial. A defendant cannot receive fundamental fairnessat trial when he or she does not have access to evidence that will shed light on the truth until after trial commences. This Court should not hesitate to vindicate the demandsofdue process and require disclosure of relevant social media recordspriorto trial notwithstanding the SCA. The United States Supreme Court has held that a defendant’s due processright to present a defense prevails over evidentiary rules and privileges. (Chambers, supra, 410 U.S. at 298; Rovario v. United States 353 U.S. 53, 60-61.) The United States Supreme Court’s decision in Pennsylvania v. Ritchie (1987) 480 U.S. 39, established that a criminal defendant’s right to due process and to receive a fair trial trumps a victim’s statutory privacy rights in Child Protective Service records and that court’s must conduct a in camerareviewsofthe confidential records and provide records material to the defense counsel. (/bid.) Because Ritchie wasa post- conviction case, it did not address whetherthe in camera review should be conductedprior to trial under the due process clause and this Court has yet had the occasion to resolvethis issue. Indeed, even without controlling precedent from the United States Supreme Court or this Court on the issues of the constitutional right to pretrial access to evidence in the wakeofRitchie, lower California courts have routinely granted pretrial access to evidence to criminal defendants under the due process clause even in the face of conflicting statutes and constitutional provisions involving privacy issues. For example,in Department ofMotor Vehicles v. Superior Court ofLos Angeles County 18 (2002) 100 Cal.App. 4 363, the DMV refused to disclose to the prosecutor or criminal defendant, both ofwhom jointly sought the records, confidential medical records in DMV’s possession which were relevant to a vehicular manslaughter prosecution. DMV claimed the records were deemed confidential and not to be disclosed to the public pursuant to Vehicle Code section 1808.5. DMV asserted it was prohibited by statute from disclosing records of a mental and physical condition. (/d at. 367.) The DMV filed a writ of mandate in the Court ofAppeal contending thetrial court abused its discretion in ordering it to disclose the entirety of the records sought because the records werestatutorily deemed confidential. The Court of Appeal denied the writ holding, “The People and [the defendant] have an interest in a documentthat is relevant to [the defendant’s] defense to the vehicular manslaughter charge. ‘A criminal defendant’s right to discovery . . .is based upon the fundamental proposition that [an accused] is entitled to a fair trial and an intelligent defense in light of all relevant and reasonably accessible information.’” [citations ommitted.] DMV v. Superior Court, supra, 100 Cal.App.4th at 377. The Court held on balance, the DMV’s interest is outweighed by the prosecution and defendant’s interestin a fair trial in a criminal case. (/bid.) As such, a criminal defendant’s right to a fair trial trumpeda state statute declaring certain medical records held by the DMV to be exempt from disclosure despite public policy interests in promoting truthful exchanges between medical professionals and the DMV. Similarly, in Rubio v. Superior Court (1988) 202 Cal.App.3d 1342, the defendant was charged with felony sex offenses against a minor. The 19 defendant denied molesting the minor and claimed that she had made up the incident after watching a video tape of her parents engaging in sexual activity. Ud. at 1346.) The defendant twice subpoenaedthe tape prior to trial. The court granted the parents’ Motion to Quash on groundsit was protected by the marital privilege. ([bid.) The defendant sought extraordinary relief prior to trial in the Court ofAppeal and the Supreme Court directed that an alternate writ be granted. The Court of Appeal complied. Relying upon Ritchie, the appellate court granted the writ and remanded the case back downto thetrial court for the court to review the tape in camera to determine of the evidence was necessary to disclose to the defendantto ensurehis right to due process when weighedagainst the parent’s federal constitutional right to privacy in the marital relationship as well as the marital privilege set forth in Evidence Code section 980. (/d. at 1350.) The Court ofAppealalso stated that if disclosure is required, the trial court “should recognize its concomitant power to issue whatever protective orders are necessary should any further disclosure be compelled to preserve petitioner’s right to a fair trial.” (/bid.) Traditional notions ofjustice and fair play, the linchpin of the Due Process Clause, require that superior courts be given the authority to order social media providers to produce records for an in camera reviewpriorto trial so that records can be used to mountan intelligent defense at a meaningful time. Any other conclusion violates a defendant’s right to present a complete defense because delaying accessto the records until the middle oftrial, when the prosecution gets unfettered accesspriortotrial, 20 under the SCA would “infring[e] upon a weighty interest of the accused” and would be “‘arbitrary’ or ‘disproportionate to the purposes they are designed to serve.’ ” (Rock v. Arkansas (1987) 483 U.S. 44, 58, 56.) This lack of reciprocity violates due process as addressed below. C. Denying Pretrial Access to Social Media Records to the Defense, but not Prosecution, Violates the Due Process Clause under Wardius v. Oregon The Court of Appeal’s ruling interpreting the SCAto grant the prosecution, but not the defense, pretrial access to social media recordsis arbitrary, unconstitutional, and cannot be squared with Sullivan’s right to present a defense, let alone with the due process argumentthat such a disparity in treatment is prohibited by Wardius v. Oregon (1973) 412 US. 470,474. The SCA,set forth in 18 U.S.C §§ 2701, et. seq, allows only account holders and government agencies, such as the police and district attorneys, to obtain the contents of electronic communications with a warrant or court order, but not criminal defendants. (18 USC 2702(d); 2703.) Real parties contend the SCA is unconstitutional as applied to criminal defendants. In Wardius, the United States Supreme Court struck downa state statute that required the defendant to disclose the namesofhis alibi witnesses but did not require the prosecution to disclose the namesofits witnesses. The Court held that such inequitable discovery rules violated due process guarantees: The State may not insist that trials be run as a ‘search for truth’ so far as defense witnesses are concerned, while maintaining ‘poker game’ secrecy for its own witnesses. It is fundamentally unfair to require a defendant to divulge the details of his own case while at the same 21 time subjecting him to the hazard of surprise concerning refutation of the very pieces of evidence which he disclosed to the State. (Wardius v. Oregon, supra, 412 U.S. at 476.) Further, the Court ruled that [a]ithough the due process clause haslittle to say regarding the amountof discovery which the parties must be afforded [ ] it does speak to the balance of forces between the accused andhis accuser.” (Wardius v. Oregon, supra, 412 U.S. at 475-76, emphasis added.) Thus, the discovery statute in which defendants and prosecutors weretreated differently was ruled unconstitutional for lack of reciprocity which impinged on the defendant’s ability to prepare a defense. Similarly, in Evans v. Superior Court (1974) 11 Cal.3d 617, this Court held that the lack of reciprocity between the prosecution and the defense in pretrial discovery regarding access to line-ups violated the due process clause under Wardius. There, this Court held that a defendant has a rightto a pretrial lineup in cases in which eyewitness identificationis a material issue and there is a reasonable likelihood of a mistaken identification. (Evans, supra, 11 Cal.3d at p. 625.) Concerned about the ability of a defendantto receive a fairtrial, this Court concludedthat because prosecutors are able to compel a lineup and use any favorable evidence, fairness required that the defendant be given a reciprocalright to discover and use lineup evidence. (/bid.) Also persuasive is the Ninth Circuit’s decision in United States v. Bahamonde (2006) 445 F.3d 1225. There, the Ninth Circuit reversed the defendants drug trafficking convictions for the importation ofmarijuana, because the district court excludedthetrial testimony ofthe arresting 22 Customs and Border Protection agent on the ground that the defendant had failed to comply with 6 C.F.R. § 5.45(a) -- the Department ofHomeland Security's regulation -- requiring a defendantto "set forth in writing, and with as muchspecificity as possible, the nature and relevanceofthe official information sought" from a proposed Department of Homeland Security witness. (/d. at 1228.) Relying primarily on Wardius, the Ninth Circuit ultimately reversed Bahamonde's conviction and remandedfor a newtrial, holding that "the regulation, as applied in this criminal prosecution, violates due processby failing to provide reciprocal discovery" from the prosecution. (/d. at 1229.) Under Wardius, Evans, and Bahamonde, the latter as persuasive authority, it is clear the SCA is unconstitutional as applied to criminal defendants for lack of reciprocity insofar as access to social media records are concerned. Pursuant to the SCA,the prosecution can accessto social media records with a court order or warrant, but bars criminal defendants the same right. Delaying access to social media records until the middle of trial when the police and prosecutor get unfettered access, does not cure the reciprocity error under Wardius. ? Defense counsel cannot prepare an 5 The reciprocity problem is highlighted by a declaration submitted on behalf of Mr. Sullivan by Inspector Broberg, the prosecution’s gang expert, who stated that he relies heavily on records from social media companies such as Facebook, Instagram and Twitter to prosecute alleged gang membersfor alleged gang crimes and in forming his opinion that crimes are committed for the benefit of a criminal street gang under Penal Code § 186.22. He also confirmed that San Francisco Police Departmenthas ready access to both public and private content on social media accounts by search warrant. He said, “[i]n the instant case, I relied in part, on social media records to provide evidence that Jaquan Rice, Jr., and defendant Hunter, Hunter, and Sullivan 23 intelligent defense if preparations and investigation are not undertaken beforehand. The Court of Appealis correct that law enforcement agencies are afforded access to means of investigation that are denied to others, including criminal defendants. But once a defendant is charged with a crime and held to answer following a preliminary hearing, the right to preparefortrial is indisputable and the access to evidence between the prosecution and the defense cannot be arbitrary, one-sided or unfair without running afoul ofthe Due Process Clause under Wardius. In its opinion,the Court ofAppeal does not address the problem ofhow a defendantis to prepare fortrial without access to relevant evidence: with nopretrial ability to subpoenarecords, significant pretrial preparation would be impossible. Becausea fair trial depends on counsel well-prepared to meetthe state’s case with all evidence that will shed light on the truth, the Court of Appeal’s position that there is no right to pretrial discovery fails. With regard to the Wardius issue, the Court ofAppealstated that “(defendants do not suggest why they wouldnotbeentitled to receive copies of [social media records] either as general criminal discovery required under Penal Code section 1054.1, [fn omitted] or as potentially exculpatory Brady material.” (Exhibit A, p. 18.) Not so. Defendants have extensively explained that Penal Code section 1054.1 controls discovery were membersofrival gangs and that the shootings were gang-related.” Broberg further stated he did not subpoena Reneesha Lee’s social media records. (1 AE 262-263.) That the defense does not have parallel access priorto trial to fairly defendant against the state’s evidence is unconstitutional as applied to criminal defendants under Wardius. 24 between the prosecution and defense counsel only, and does not address a criminal defendants right to compel third-parties such as Facebook to produce materials the defense needsfor trial. Moreover, the state cannot compelthird-parties such a Facebook to produce exculpatory evidence to the defense because third-parties are not part of the prosecution team and the state is not required to seek out evidence and investigate a case on behalf of the defendant under Brady v. Maryland (1963) 373 U.S. 83 andits progeny. (See In re Koehne (1960) 54 Cal.2d 757, 759 ["the law does not impose upon law enforcement agencies the requirement that they take the initiative, or even anyaffirmative action, in procuring the evidence deemed necessary to the defense of an accused"); People v. Hogan (1982) 31 Cal.3d 815, 851 [There is no general duty on the part ofthe police or the prosecution to obtain evidence, conduct anytests, or " ‘gather up everything which might eventually prove useful to the defense.' "]; In re Littlefield (1993) 5 Cal.4th 122 [The prosecution has no general duty to seek out information from other agencies or sources that might be beneficial to the defense.].) Federal law is in accord: A prosecutor does not have a duty to obtain evidence from third parties. (United States v. Combs (10th Cir. 2001) 267 F.3d 1167, 1173 [observing that Brady v. Maryland doesnot oblige the governmentto obtain evidence from third parties]; United States v. Baker (7th Cir. 1993) 1 F.3d 596, 598 [("Certainly, Brady does not require the governmentto conduct discovery on behalf of the defendant."); |; United States v. Lujan, 530 F. Supp. 2d at 1231 [stating there is no affirmative duty 25 to discover information in possession of independent, cooperating witness and not in government's possession).] Thus, the District Attorney cannot be compelled to obtain evidence for criminal defendants that the prosecution team did not choose to seek out on its own. Finally, defendants cannot get the records they need from thestate because the state chose to procure some, but notall, of Mr. Rice’s social media records and none of Ms. Lee’s social records, all of which the defense needs to impeachherattrial and to present a complete defense.° Criminal defendants cannotfully and fairly defend a criminal case based solely upon social media records obtained bypolice and prosecutors by utilizing the statutory discovery schemeset forth in Penal Codesection 1054.1. The prosecution team and defense attorneys seek very different records in support oftheir respective adversarial roles. Law enforcement issue search warrants to obtain evidence of criminal activity or contraband based upon a peace officers sworn affidavits establishing probable cause of criminal activity. (Cal. Pen. Code, § 1523-1524.) In contrast, the mechanism criminal defendants use to obtain evidencethat is likely to facilitate the ascertainmentoftruth and a fair trial, such as evidence relevant to impeach a prosecution witness or establish an affirmative defense, is a third-party subpoena pursuant to Evidence Code section 1326. If contested, defense counsel is required to make a good cause showing,as an officer of the court, that the requested information will facilitate the 6 The prosecution’s gang expert has averred he did not seek Ms. Lee’s social media records. (1 AE 262-263.) 26 ascertainmentof facts anda fair trial. (Pitchess v. Superior Court (1974) 11 Cal.3d 531; People v. Superior Court (Barrett) (2000) 80 Cal.App.4th 1305, 1313; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1045.) A good cause showing can be established by a defense counsel’s declaration detailing the records’ relevancy, admissibility, and materiality to the defense case. (People v. Superior Court (Barrett), supra, 80 Cal.App.4th at 1313.) The issuance of a third-party subpoenais a ministerial act, and thetrial court has wide authority to review the records in camera, issue protective orders, redact irrelevant information, and engage in whatever balancing of interests that needs to occur to ensure a criminal defendant has access to records needed to present a complete defense as guaranteed by the constitution. (See generally, Kling v. Superior Court (2010) 50 Cal.4th 1068.) In light ofthe foregoing, it is abundantly clear that respondent court rightly decided that social media providers should produce the records sought to the court for an in camera review prior to trial and the Court of Appeal erred in reversing that decision. Defensepretrial subpoenas of confidential records are subject to even stricter judicial control than search warrants becausetwolevels ofjudicial review are required before confidential records can be disclosedto the defendant: first, defense counsel must makean initial good cause showing as to relevance before the records can be released. If good cause is shown, then the court conducts an in camera review and only releases relevant records to the defense, subject to a protective order. In contrast, for law enforcement, once a judge signs a search warrant, the records are generally 27 released wholesale to the state without an in camera review asto relevance regardless of the privacyrights at stake. Thus, the procedures in place pursuant to Penal Code section 1326 for defense pretrial subpoenas of confidential records provide more privacy protections for the citizenry, than the search warrant process used by law enforcement. Thus,the fear that real parties will have unfettered accessto irrelevant records, disclose private records to the general public, and will engage in “fishing expeditions”is unfoundedparticularly given that trial courts can control the process by limiting disclosure of irrelevant records and issuing protective orders. In light of the foregoing, Sullivan asserts that his right to due process is violated under Wardius because underthe interpretation ofthe SCA enunciated by the Court ofAppeal, that the state, but not the defense,is granted access to social media records priorto trial without good reason for the distinction given that the superior court maintains strict control over the release of the relevant records. As such, the SCA is unconstitutional as applied to criminal defendants if interpreted to ban accessentirely, or preclude access until trial is underway whenthestate is not subject to the samerestriction. D. The Compulsory Process Clause Compels Pretrial Production of Social Media Records Sought By Third- Party Subpoena Criminal defendants have the right to pretrial access to social media records held by electronic service providers under the Compulsory Process Clause. As a general matter, a California criminal defendanthasthe right to obtain by subpoena duces tecum third-party records “if the requested 28 information will facilitate ascertainmentofthe facts and a fair trial.” (Pitchess v. Superior Court (1974) 11 Cal.3d 531, 556.) Underthe federal Compulsory Process Clause one of the most fundamental ofrights in our adversary system ofjustice is the right of a criminal defendant to compel the attendance of witnessesat trial and to present to the jury evidence that might influence the determination of guilt. (Pennsylvania v. Ritchie (1987) 480 U.S. 39; accord; Washington v. Texas (1967) 388 U.S. 14.) The Supreme Court has long held that compulsory process is fundamental for the search for justice. (Taylor v. Illinois (1988) 484 U.S. 683, 709; United States v. Nixon (1974) 418 U.S. 683, 709.) Over 200 years ago, the high court in United States v. Burr, 25 F. Cas.30 (C.C.D. Va.1807) held that a defendanthas the right, as soon as his case is in court to compel the production of evidence: “any person charged with a crime in the courts of the United States has a right, before as well as after indictment, to the process of the court to compel the attendanceofhis witnesses.” (U.S. v. Burr (C.C.D. Va 1807) 25 F.Cas 30, 33. Like here, the Burr court addressed privacy objections, because the subpoenathere wasdirected to the President of the United Statesin the Aaron Burr trial. Then, as now,a privacy objection would not overcome the defendant’s right to compulsoryprocess of relevant material: “In the provisionsofthe constitution, and of the statute which give to the accused a right to the compulsory process ofthe court, there is no exception whatsoever. (U.S. v. Burr, supra, 25 F. Cas. at 34, emphasis added.) Issuing the subpoena, the Burr court observed whatis still the heart of the 29 compulsory process clause today: “Generalprinciples, then, and general practice are in favor ofthe right of every accused person, so soon as his case is in court, to prepare for his defence, and to receive aid of the process of the court to compelthe attendanceof his witnesses.” (U.S. v. Burr, supra, 25 F. Cas.at 33.) In United States v. Nixon, (1974) 418 U.S. 683, 716, the President of the United States invoked executive privilege to avoid compliance with a third-party subpoena duces tecum issued by criminal defendants in the Watergate scandalthat sought the productionoftape recordings and documentsfive months priorto trial. (Id. at 689.) A special prosecutor soughtto obtain information concerning meetings between the President and certain individuals charged with obstruction ofjustice, conspiracy, and other offenses. The President's motion to quash the subpoena wasdenied. Holding that the President's general privilege of confidentiality did not extend to an absolute privilege of immunity from all judicial process, the U.S. Supreme Court affirmed the denial of the motion to quash. The Court ruled that because the special prosecutor had demonstrated a specific need for the evidence sought by way of subpoenait was proper to compel production based,in part, on the Compulsory Process Clause, and to examine the material in camera. (/bid.) In so ruling, the Supreme Court stated: Wehaveelected to employ an adversary system of criminal justice in which the parties contest all issues before a court of law. The needto develop all relevant facts in the adversary system is both fundamental and comprehensive. The ends of criminal justice would be defeated ifjudgments were to be founded on a partial or speculative presentation ofthe facts. 30 The very integrity of the judicial system and public confidence in the system depend onfull disclosure ofall the facts, within the framework ofthe rules of evidence. To ensure thatjustice is done,it is imperative to the function of courts that compulsory process be available for the production ofevidence needed either by the prosecution or by the defense. (United States v. Nixon, supra, 418 U.S.at p. 709, emphasis added.) Relying on Nixon, Burr andits progeny, in Ritchie, the Supreme Court held that, “{OJur cases establish, at a minimum, that [under the Compulsory Process Clause of the Sixth Amendment] criminal defendants have the right to the government's assistance in compelling the attendance of favorable witnessesattrial and the right to put before a jury evidence that might influence the determination ofguilt.” (Pennsylvania v. Ritchie, supra, 480 at 55-56, fn. omitted, emphasis added.) In this case, the Court ofAppeal correctly pointed outthat the Supreme Court said in Ritchie, 480 U.S.at 55, that the High Court has yet had “little occasion to discuss the contours of the Compulsory Process Clause” and choseto analyze the issues presented therein under a Brady due process clause analyses presumably becausethe records the defendant sought were in possession of the government, not third parties. However, just because the Ritchie majority chose to examine the issue under the Due Process Clause, does not preclude this Court from also considering this issue under the federal Compulsory Process Clause as well. Sullivan contends that the Compulsory Process Clause alone, or in conjunction with the Due Process Clause, requires pretrial production of social media records and the Court of Appealerred in failing to so hold. This Court should 31 authorize the superior court to conduct an in camera review ofsocial media records pursuant to the Compulsory Process Clause. E. Social Media Records Should Be Produced Pretrial Because the Sixth Amendment Guarantees a Criminal Defendantthe Right to Effective Assistance of Counsel in Plea Negotiations Which Will Not Occur if Exculpatory Social Media Records Are Inaccessible to the Defense Until Midway Through Trial Real Party, Sullivan, asserts that the Sixth Amendment’s guarantee of effective assistance of counsel requires that social media records be producedpretrial so counsel for the accused has accessto all relevant evidence that will shed light on the truth in order to effectively represent a defendant during plea negotiations. The Sixth Amendment, applicable to the States by the Fourteenth Amendment, provides that the accused shall have the assistance of counselin all criminal prosecutions. The right to counselis the right to effective assistance of counsel. (Stricklandv. Washington (1984) 466 U.S. 668.) It is well settled that the right to the effective assistance of counsel applies to certain steps beforetrial. The “Sixth Amendment guarantees a defendant the right to have counsel present at all ‘critical’ stages of the criminal proceedings.” (Montejo v. Louisiana (2009) 556 U.S.778, 786.) The United States Supreme Court has affirmed that plea negotiationsare a critical stage of the proceedings and constitutionally effective counsel is required under the Sixth Amendment. (Padilla v. Kentucky (2010) 559 U.S. 356; Hill v. Lockhart (1985) 474 U.S. 52; Missouri v. Frye (2012) 132 S.Ct. 1399.) Real party, Sullivan asserts that criminal defendants cannotreceive effective assistance of counsel at plea negotiations if they are precluded 32 from accessing exculpatory social media records unless and until they proceed to trial. Unless defense counsel has accessto all evidence that will shed light on a case, including social media records that support an affirmative defense or impeach a prosecution witness, they will be unable to fairly negotiate with the prosecution to obtain a just outcomefortheir clients. A defense attorney cannot zealously defend his or her clients during plea negotiations if the search for the truth is hindered by statute that blocks defense access to exculpatory social media records until midway through trial. The impact of delayed access to exculpatory social media records until trial would be disastrous given the majority of criminal cases do notgo to trial, but are resolved by a negotiated disposition. This point is madeby the United States Supreme Court in Missouri v. Frye (2012) 132 S.Ct. 1399 at 1407: Ninety-seven percent of federal convictions and ninety-four percent of state convictionsare the result of guilty pleas. {Internalcitations omitted.] The reality is that plea bargains have becomesocentral to the administration of the criminal justice system that defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendmentrequires in the criminal processat critical stages. Because ours“is for the most part a system of pleas, not a system of trials,” Lafler, post, at 1388, 132 S.Ct. 1376,it is insufficient simply to point to the guarantee ofa fair trial as a backstop that inoculates any errors in thepretrial process. “To a large extent ... horse trading [between prosecutor and defense counsel] determines who goesto jail and for howlong. That is what plea bargainingis. It is not some adjunct to the criminal justice system;it is the criminaljustice system.” Scott & Stuntz, Plea Bargaining as Contract, 101 Yale L.J. 1909, 1912 (1992). See also Barkow, Separation of Powers and the Criminal Law, 58 Stan. L.Rev. 989. 1034 (2006) (“[Defendants] who do take their caseto trial and lose receive longer sentences than even Congressor the prosecutor might think appropriate, because the longer sentences exist on the books largely for bargaining purposes. This often results in individuals who accept a plea bargain receiving shorter sentences than other individuals whoare less morally 33 culpable but take a chance and gototrial” (footnote omitted). Jn today's criminaljustice system, therefore, the negotiation ofa plea bargain, rather than the unfolding ofa trial, is almost always the criticalpointfor a defendant. (Missouri v. Frye, supra, 132 S.Ct. at 1407, emphasis added.) Becauseplea negotiationsare thecritical point for the lion share of criminal cases, it is manifestly unfair to preclude criminal defendants from access to exculpatory social media records in 95% ofthe casesthatsettle rather than proceedto trial. Defense counsel cannot and will not be effective during plea negotiations unless armed with social media records that will discredit a prosecution witness and permit a plea to reduced charge or sentence following plea negotiations. The categoric denial ofan entire genre of evidence until a defendant proceedsto trial is unfair and strips defendants ofthe effective assistance of counsel in the majority of criminal cases. Concerns aboutprivacy interests can be dealt with by a carefulin camerapretrial review as well as protective orders deemed necessary by the court. The over-emphasis on the timing ofthe disclosureis a red herring. F. This Court Should Overrule Hammon,orin the Alternative, Limit Hammon to Psychotherapy-Patient Records, and Hold that a Criminal Defendant’s Right to Confrontation Under the Sixth Amendment Includes The Right to Pretrial Access to Evidence Necessaryto Cross- Examine Witnesses Given the United States Supreme Court Has Not Reached This Issue In the absence of United States Supreme Court authority to the contrary, this Court has the authority to decide that a criminal defendant’s Sixth Amendment’s right to confront and cross-examine witnesses, includes the right to pretrial access to social media records necessary to conduct an effective cross-examination. The Sixth Amendment's Confrontation Clause provides: “In all criminal prosecutions, the accusedshall enjoy the right... to be confronted with the witnesses against him.” This right is secured for defendants in state as well as in federal criminal proceedings. (Pointerv. Texas (1965) 380 U.S. 400.) The Court has emphasized that “a primary interest secured by [the Confrontation Clause] is the right of cross- examination.” (Douglas v. Alabama (1965) 380 U.S. 415, 418. The opportunity for cross-examination, protected bythe Confrontation Clause, is critical for ensuring the integrity of the fact-finding process. Cross- examinationis “the principal means by whichthe believability of a witness and the truth of his testimony are tested.” (Davis v. Alaska (1974) 415 US. 308.) Indeed, the Court has recognizedthat cross-examination is the “ ‘greatest legal engine ever invented for the discovery oftruth.” ” (California v. Green (1970) 399 U.S. 149m 158, quoting 5 J. Wigmore, Evidence § 1367, p. 29 (3d ed. 1940). In Davis, supra, 415 U.S. at 308,the United States Supreme Court held a criminal defendant’s constitutional right to cross-examine witnesses trumpeda state law declaring juvenile recordsto be confidential and not to be disclosed to the public. Specifically, the trial judge prohibited defense counsel from questioning a witness aboutthelatter's juvenile criminal record, because a state statute made this information presumptively confidential. The United States Supreme Court foundthat this restriction on cross-examination violated the Confrontation Clause, despite Alaska's legitimate interest in protecting the identity ofjuvenile offenders. (Ud. at 35 318-320.) The Court of Appeal’s opinion that defendants are not entitled to pretrial access to social media records under the Sixth Amendment’s Confrontation Clause is based largely on People v. Hammon (1997) 15 Cal.4th 1177, a case in which this Court held that child molest victim’s confidential psychotherapy records could not be subpoenaedpriorto trial. The basis for the Hammonopinion wasthat in Ritchie, (1987) 480 U.S. 39, a plurality of the Court led, by Justice Powell, interpreted the Confrontation Clause to mean thatthe right of confrontation is designed simply "to prevent improperrestrictions on the types of questions that defense counsel may ask during cross-examination" and does not create pretrial access to evidence. (/d. at 52.) Thus,the plurality in Ritchie concludedthat the constitutional error in Davis was notthat state law made certain juvenile criminal records confidential, but rather that the defense attorney had been precluded from asking questions about that criminalrecord attrial. (Ud. at 54.) However, Justice Powell failed to command a majority. For their part, Justice Blackmun and Justice Brennan, who was joined by Justice Marshall, each expressed a view to the contrary, namely, that the Confrontation Clause gave criminal defendants the constitutionalright to pretrial access to evidence necessary for cross-examination. U/d. at pp. 61-65 (conc. opn. of Blackmun,J.); id at 66-72. (dis. opn. of Brennan, J.).) In a later case, Justice Blackmun described his views on this issue as follows: The personal view ofthe author ofthis opinionasto the Confrontation Clause is somewhatbroader than that of the Ritchie 36 plurality. Although he believesthat [t]here are cases, perhaps most of them, where simple questioning of a witness will satisfy the purposes of cross-examination (id., at 62, 107 S.Ct., at 1004 (BLACKMUN, J., concurring), he also believes that there are cases in whicha state rule that precludes a defendant from access to information before trial may hinder that defendant's opportunity for effective cross-examinationat trial, and thus that such a rule equally may violate the Confrontation Clause. U/d., at 83-65, 107 S.Ct., at 995- 996.) (Kentucky v. Stincer (1987) 482 U.S. 730, at 738, emphasis added.) Real parties respectfully request that this Court reconsiderits ruling in Hammon becauseit gave undue weight to the plurality opinion in Ritchie that the Sixth Amendmentdoes not grantpretrial right to access materials necessary for cross-examination. Plurality opinions are not controlling precedent because they do not command a majority. In Marks v. United States (1977) 430 U.S. 188 the Supreme Court of the United States explained howthe holding of a case should be viewed whenthere is no majority supporting the rationale of any opinion: “When a fragmented Court decides a case and nosingle rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” (Marks, 430 U.S. at 193.) Thus, Ritchie is only controlling precedent for the proposition upon which the majority agreed:that the due process clause required the trial court to conduct an in camera review of a confidential child protective services file to determine if it contained material evidence helpful to the accused. (Ritchie, supra, 480 U.S. 39.) It is not authority for the proposition that the Sixth Amendment’s Confrontation Clause does not grant pretrial access to discovery necessary 37 to cross-examine witnesses. Defendants agree with Justice Mosk’s concurring opinion in Hammonin which hesaid that the majority wrongly relied upon the Ritchie plurality in concluding thereis no pretrial right to access evidence underthe Sixth Amendment’s Confrontation Clause. Hesaid, that in reaching their opinion, the Hammon majority relied on Ritchie, supra, 480 U.S. 39 “[w]hich meansthat they rely on nothing” because no majority was reached in that case. Justice Mosk further stated: “It should hardly need mention that [w]e are under a solemn obligation to interpret and implement the United States Constitution [internal citations omitted] especially when,as here, the United States Supreme Court hasitself defaulted.” (Hammon, supra, 15 Cal.4th at 1130-31.) He concluded his opinion as follows: Andso, the majority, in effect, leave to another day the question whethera state law evidentiary privilege may haveto yield to a defendant's Sixth Amendmentright of confrontation in pretrial discovery. That day may not come until the United States Supreme Court happensto give an answer. Unless, thatis, this court should acceptits responsibility to address the matter even in the absence of word from Washington. (People v. Hammon (1997) 15 Cal.4th at 1130-31, conc. opn of Mosk,J.) Defendants respectfully urge this Court to answer Justice Mosk’scall and squarely hold that when it comesto social media records, a defendant has a constitutional right to pretrial access to evidence under the Sixth Amendment Confrontation Clause in order to conduct an effective cross- examination. Just having the opportunity to ask questions of Ms. Leeis of no import if counsel is not fully prepared to impeach her following a timely access and a complete review ofthe relevant records. Real parties assert 38 S E PM o d a l i t i e s e r e S E N D that Justice Blackmun’s concurring opinion should be followed becausethis is a case in which simple questioning of witnessesat trial will not suffice for effective cross-examination under Confrontation Clause; pretrial access to social media recordsis, therefore, constitutionally compelled. Defendants urge this Court to hold that Hammon was wrongly decided on constitutional groundsinsofar asit is being relied upon to deprive defendants of social media records necessary to cross-examine Ms. Lee and the gang expert attrial.’ Real parties agree with Justices Mosk, Blackmun, Brennan, and Marshall that although a defendant mayhappento cross-examine an adverse witness only in the courseoftrial, to do so effectively he may have to undertake preparations long before. “More generally, to defend himself meaningfully, he must usually seek out the truth immediately: He cannot wait until the cause is called to trial.” (Hammon, 15 Cal.4th at 1130-31, conc. opn ofMosk,J.) Defendants respectfully urge this Court to overrule Hammon and 7 The Court of Appeal gave great weight to gang cases such as Alvarado v. Superior Court (2000) 23 Cal.4th 1121, People v. Valdez (2012) 55 Cal.4th 82 and Peoplev. Maciel (2013) 57 Cal.4th 482, in support ofits ruling that defendants are notentitled to pretrial access to social media records under the Sixth Amendment’s Confrontation Clause. These cases are not germaneto the issues presented herein because the gang cases concernedtrial courts’ orders withholding the identity of witnesses in cases in which there was an actual threat on a witnesseslife, which is not a consideration here. Indeed,if the release of social media records would endangerthelife of a witness, a court conducting the in camera review certainly has the authority to limit or delay disclosure if a witnesses was threatened. Moreover, in Alvarado, Valdez, and Maciel, the defendants were not deprived of pretrial access to materials necessary to defendtheir case at trial. Only the identity of the witness was delayed or withheld. In contrast, here, defendants are being wholly deprived oftheir right to pretrial access to evidence needed to mounta defense and cross-examine adverse witnesses. 39 conclude it was wrongly decided on practical, as well as constitutional, grounds. Courts are obliged to seek the “orderly ascertainmentofthe truth” (Jones, supra, 58 Cal.2d at 60) which wouldbe served by timely pretrial disclosure so defense counsel can effectively represent defendantsatall critical stages of the proceedings, including plea negotiations. Instead, Hammonis not followedintrial courts because delaying disclosure until after trial commencesresults in mid-trial continuances and strains an already over-burdened criminaljustice system. Moreover, defendants disagree with the Court of Appeal’s assertion that trial courts are in the best position to rule on the disclosure of confidential records. In counties which use a master calendar system,it is the superior court judges whorule on pretrial motions and conduct settlement negotiations who are most familiar with the evidence in a particular case, and best able to regulate subpoenaissues, notthetrial courts who are assigneda casefortrial depending on courtroom availability without prior information about the case. Moreover, even if access to social media records is technically a “trial right” a superior court judge still retains the inherent as well as statutory discretion to control the proceedings to ensure the efficacious administration ofjustice.” (People v. Cox (1991) 53 Cal.3d 618, 700, disapproved on other groundsin People vy. Doolin (2009) 45 Cal.4th 390, 421 fn.22.) Indeed, superior courts have fundamental inherent equity, supervisory, and administrative powers, as well as inherent powerto controllitigation before them.[Citation.] (Rutherfordv. Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967; People v. Olsen (2014) 229 40 Cal.App.4th 981, 997-98; Const., art.VI, § 1.) Thus, respondent court, as master calendar judge, had the inherent authority to rule on social media’s Motions to Quash a one day before the case wasto be sent outoftrial in order to promote the efficacious administration ofjustice. Respondent court was familiar with the evidencein this case, properly heard the Motionsrather than sendingthecaseto a trial court only to tie up a courtroom and jury while the losing party sought extraordinary relief in the Court of Appeal for the following seven months. The Court of Appeal promoted form over substance whenit granted the petition based on the fact that respondent court ruled on the motion one day before trial was to commence, a ruling which will lead to absurd results and chaosif allowed to stand. Alternatively, real parties request Hammonbe limited to records subjected to the psychotherapist-patient privilege pursuant to Evidence Code section 1014. Real parties contend that this Court, in Hammon, intendedto limit its holding to confidential mental health records bystating as follows: The only recordsthetrial court declined to review in camera were those defendant sought from Jacqueline's psychologists. While defendant also sought access to Jacqueline's high school and juvenile court records, the trial court did review those records anddisclose some ofthem to the defense. Thus, in asking whetherthe trial court had a duty to review confidential or privileged records in camera, we are concerned exclusively with the records requestedfrom the psychologists. (Hammon,supra, 15 Cal.4th at 1122.) The foregoing indicates, that this Court intended its ruling to apply to privileged mental health recordsonly protected by Evidence Code section 1014, not to all arguably confidential 4] records. This interpretation makes the most sense given that the psychotherapist-patientprivilege is entitled to heightened protections dueto the vulnerability of the patients and research that has showedthepatients will not seek mental health treatment unless assured of confidentiality. ° Accordingly, if this Court does not overrule Hammon, defendants request that it be limited to records protected by Evidence Codesection 1014. Confidential communications between psychotherapist and patient are protected in order to encourage those who maypose a threat to themselves 8 The Legislative Comment to Evidence Code section 1014 makesthis point: This article creates a psychotherapist-patientprivilege that provides much broaderprotection than the physician-patientprivilege. A broad privilege should apply to both psychiatrists and certified psychologists. Psychoanalysis and psychotherapy are dependent upon the fullest revelation ofthe most intimate and embarrassing details of the patient's life. Research on mental or emotional problems requires similar disclosure. Unless a patient or research subject is assured that such information can and will be held in utmost confidence, he will be reluctant to make the full disclosure upon which diagnosis and treatment or complete and accurate research depends. The Law Revision Commission hasreceived severalreliable reports that persons in need of treatment sometimes refuse such treatment from psychiatrists because the confidentiality of their communications cannot be assured underexisting law. Many ofthese personsare seriously disturbed and constitute threats to other persons in the community. Accordingly,this article establishes a new privilege that grants to patients of psychiatrists a privilege much broader in scope than the ordinary physician-patient privilege. Althoughit is recognized that the granting ofthe privilege may operate in particular cases to withhold relevant information, the interests of society will be better served if psychiatrists are able to assure patients that their confidences will be protected. The Commission has also been informed that adequate research cannot be carried onin this field unless persons examinedin connection therewith can be guaranteedthat their disclosures will be kept confidential. Evid. Code, § 1014 42 or to others, because of some mental or emotional disturbance, to seek professional assistance. (Grosslight v. Superior Court (1977) 72 Cal.App.3d 502, 507-508; People v. Stritzinger (1983) 34 Cal.3d 505, 511 [194 Cal.Rptr. 431, 668 P.2d 738].) Realparties assert that Zammon doesnot apply to the disclosure of social media records at issue here. Although the SCA is an statutory bar to the production of electronic records by social media companies,it does not create a traditional evidentiary privilege that was at issue in Hammon. (See Evidence Code section 910, et seq.) In traditional privileges, a holder may refuse to testify as to the substance of a confidential communication, or prevent the recipient of the communication, such as an attorney or doctor, from testifying to its substance. For example, section 1014 provides in part that "the patient, whether or not a party, has a privilege to refuse to disclose, and to prevent another from disclosing, a confidential communication between patient and psychotherapist ...." In contrast, the “holder” of social media records, such as one’s “friends” on Facebook cannot refuse to testify regarding the contents ofhis or her social media posts, nor can the social media user prevent others whosee the posts from testifying as to the contents. Rather, the social media companies are merely the bailee of communications between the account holder and whomeverheor she communicates. Accordingly, social media posts do not fall within the ambit ofHammon because the contents of the posts are not protected from disclosure like the traditional evidentiary privileges. Thus, the Court of Appeal erred when it ruled Hammonandits progeny preventedpretrial 43 access to social media records. CONCLUSION Real parties respectfully and urgently request that this Court do what is just and grant criminal defendants the right to subpoena social media records prior to the commencementoftrial, upon a showing of good cause, subject to a judicial in camera review to protect privacy interest of the account holders. Real party Sullivan is facing a potential life sentence and he should not be deprivedofpretrial access to records that will prove heis innocent of the charges for which he stands accused so counsel can reasonably prepare and mount proper defense. Ms. Lee and Mr. Rice’s privacy interests can be adequately protected by a protective order. For the reasons stated herein, it is respectfully requested that the Court ofAppeal’s decision be reversed and Facebook,Instagram, and Twitter be ordered to produce the subpoenaedrecords to respondent court for an in camera review forthwith. Respectfully submitted this 15thNal2016. By: // JANE E. CAYWOOD Associate Attorney for Real Party LEE SULLIVAN SUSAN A. KAPLAN Lead C el for Real PartyEat JOS CLES UMALI Atto for Real Party DERRICK HUNTER 44 CERTIFICATION I hereby certify that Real Parties Opening Brief on the Merits consists of 12,100 words and that the font used was 13 point Times New Roman. Dated: January 15, 2016 Respectfully itt JANELLE E. CAYWOOD- Attorney/for Real Party Lde ivan PROOF OF SERVICE BY U.S. MAIL Re: Facebook v. Superior Court No. 8230051 I, JANELLE E. CAYWOOD,declare that I am over 18 years of age and not a party to the within cause; my business address is 3223 Webster Street, San Francisco, California 94123. On January 15, 2016 I served a REAL PARTIES, LEE SULLIVAN AND DERRICK HUNTER’S, OPENING BRIEF ON THE MERITSoneachofthe following by placing a true copy thereof enclosed in a sealed envelope with postagefully prepaid and deposited in United States mail addressed as follows: Heather Trevisan Hon. Bruce Chan Office ofthe San Francisco District Attorney San Francisco Superior Court, D-22 850 Bryant Street, Third Floor 850 Bryant Street, Third Floor San Francisco, CA 94103 San Francisco, CA 94103 James Snell Court ofAppeal, First District Perkins Coie, Llp. Division Five 3150 Porter Drive 350 McAllister Street Palo Alto, CA 94304 San Francisco, CA 94102 I declare under penalty that the foregoing is true and correct. Executed on January 15, 2016, at San Francisco, California. /ANELTY E. CAYWOOD