Smartphones: How Defense Attorneys Can Use Discovery Rules To Ensnare You

Using your phone for the job can be helpful, but it could get you into legal hot water.

Smartphones are a valuable technological tool that can help law enforcement officers work more efficiently, but they should be used with caution. Do not assume that information transmitted from your smartphone will only be viewed or listened to by the original recipient. The law may require that your smartphone records be disclosed to a defense attorney.

Defendants are entitled by law to know about evidence that can help them to attack the government’s case. Information that must be disclosed to the defense is referred to as discovery material. Depending upon the facts and circumstances in which your smartphone was used, discovery material could include your smartphone records.

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Because smartphone technology is relatively new, the Supreme Court has not decided a case that specifically addresses the question of what types of law enforcement smartphone records are discovery material. Therefore, there is no controlling precedent, and the law can vary from one jurisdiction to another. However, there are two Supreme Court cases that do describe the types of information that must be disclosed to defendants: Brady v. Maryland and United States v. Giglio. Under Brady and Giglio, some LE smartphone records are indeed discovery material.

Under Brady, the government must reveal to the defense any exculpatory evidence known to the government. Exculpatory evidence is evidence that casts doubt on the defendant’s guilt or that might reduce the defendant’s punishment. For example, if you used a smartphone field reporting application to report a suspect’s description, and the person who eventually was arrested for the crime did not look like the suspect you described, your report would be considered exculpatory evidence. The defense could argue that the smartphone record supported that someone other than the defendant committed the charged offense. Another example of exculpatory evidence would be if a LE smartphone record supported a defendant’s alibi or an affirmative defense such as entrapment or self-defense.

The defense does not need to request Brady material. If the government knows of any exculpatory material, the government must disclose this information to the defense in a reasonable amount of time so the defense has an adequate opportunity to prepare for trial.

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