More than a trillion text messages are sent each year in the United States alone. Some of these messages are work-related communications from law enforcement officers to fellow officers, witnesses, prosecutors, and others. Which, if any, of these messages are discoverable? How should officers preserve discoverable messages? Must prosecutors ask for officers’ text messages before providing discovery to the defense? This post begins to address these questions. Statutory discovery. G.S. 15A-903 generally requires “[t]he State to make available to the defendant the complete files of all law enforcement agencies . . . involved in the investigation of the crimes committed.” The term “file” includes witness statements, officers’ notes, and “any other matter or evidence obtained during the investigation.” Some work-related text messages sent by officers are likely part of the “file.” For example, a text message may memorialize a witness statement, such as a message from one officer to another stating, “I talked to the alibi witness and she said she wasn’t with the defendant on the night of the crime.” Cf. United States v. Suarez, 2010 WL 4226524 (D.N.J. Oct. 10, 2010) (unpublished) (ruling that text messages between officers and cooperating witnesses were witness statements subject to discovery and were “fertile ground for cross examination”; the government’s failure to preserve and produce the messages justified an adverse inference instruction). Other text messages may function as notes, as when an officer texts a colleague, “I went to the convenience store next door to the crime scene but it doesn’t have a [...]
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