Defense Access to Stored Electronic Communications

As I mentioned last week, I have a new publication entitled Prosecution and Law Enforcement Access to Information about Electronic Communications. It's meant to be useful on a range of topics, from phone records and wiretapping, but the most detailed discussion concerns email, text messages, and other stored electronic communications. The very, very simplified version of that section of the paper is that the state can access that type of evidence with a search warrant, and perhaps, in some cases, by other means. In my post announcing the paper, I promised to write about defense access to stored electronic communications, a topic not addressed in the publication. Here I am, making good. Let's take a specific example. How, if at all, may a defendant charged with rape access emails that the complainant sent from her Yahoo! email account to a friend, where there is reason to believe that (1) the emails remain on Yahoo!'s servers and (2) the emails may be exculpatory, because they may suggest that the encounter was consensual? (Remember, if the state were seeking the defendant's incriminating emails to his brother, it could obtain them with a search warrant directed at the defendant's email service provider, or maybe even with lesser process.) The short answer is, the defendant can't access the emails. Of course, if the complainant still has access to the emails, the defendant can subpoena them from her. But if she doesn't -- for example, if she's deleted them -- or if she isn't forthcoming with [...]