Where does the right to obtain evidence prior to trial fall?

Harmonizing competing legal rights is a little like playing the card game "War": Whichever card or right has the highest rank wins. But the two are not identical because, unlike a playing card, the "face value" of a legal right can change. In fact, the California Supreme Court is in the midst of deciding whether to change the value of a criminal defendant's right to obtaining privileged evidence prior to trial. Right now, that right has no value prior to trial. But Facebook Inc. v. Superior Court, S230051, may make that right the proverbial ace in the hole by recognizing a federal constitutional right to obtain that evidence.

The basic rules for ranking various legal rights are well established. In our Constitution-based form of government, constitutional rights outrank statutory rights. See Marbury v. Madison, 5 U.S. 137, 177 (1803). And the federal Constitution's supremacy clause means that rights based on federal law outrank rights based on state law. U.S. Const., art. VI, Section 2. As a result, a state statutory right yields to a state constitutional right, e.g., People v. Navarro, Jacob B. v. Superior Court, 40 Cal. 4th 948, 964 (2007), and either yields to a federal statutory right, e.g., In re Garcia, 58 Cal. 4th 440, 452 (2014). And everything yields to the ultimate trump card - a federal constitutional right. E.g., Delaney v. Superior Court, 50 Cal. 3d 785, 805-06 (1990).

This hierarchy of rights is particularly useful in resolving discovery disputes in criminal discovery. A prosecutor's attempt to obtain evidence from a defendant may be thwarted by that person's federal constitutional privilege against self-incrimination. Or a defendant's subpoena for evidence pertaining to a witness may bump up against a state statutory or constitutional privilege held by that witness. The main difference is that criminal defendants, unlike prosecutors, may still be able to obtain that evidence if they possess a federal constitutional right that can override the state privilege.

There is no question that criminal defendants can assert several federal constitutional rights to obtain evidence once their trial has started. They have a federal due process right to obtain evidence favorable and material to their defense under Brady v. Maryland, 373 U.S. 83 (1963), and that right continues through the conclusion of trial, e.g., United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991). They also have a Sixth Amendment right "to have compulsory process for obtaining witnesses in [their] favor," although the U.S. Supreme Court has held that "compulsory process provides no greater protections in this area than those accorded by due process." Pennsylvania v. Ritchie, 480 U.S. 39, 56 (1987). Criminal defendants also have a federal Sixth Amendment right "to be confronted with the witnesses against" them, which the U.S. Supreme Court in Davis v. Alaska, 415 U.S. 308 (1974) defined to secure not only the right to physically confront a witness, but also a right to trump a state-law-based privilege against disclosing that a witness was on juvenile probation, at least where that privilege interfered with the defendant's ability to cross examine that witness at trial. Id. at 315-20.

But what about obtaining evidence prior to trial?

The federal right to due process embodied in Brady confers upon a criminal defendant the right not to have the prosecution "suppress" favorable, material evidence; this translates to a right to have the evidence produced "at a time when [it] would be of value to the accused," People v. Superior Court (Meraz), 163 Cal. App. 4th 28, 51 (2008); United States v. Houston, 648 F.3d 806, 813-14 (9th Cir. 2011), which in many cases will be prior to trial. But this right reaches only evidence the "prosecution team" possesses or knows about; it does not extend to evidence held by third parties and unknown to the prosecution team. Brady, at 87; People v. Whalen, 56 Cal. 4th 1, 64 (2013). Because, as noted above, the right to compulsory process is at best coextensive with the right to due process, a defendant's right to obtain evidence privileged by state law or federal statutory law depends on whether he or she can assert a superior, federal confrontation clause-based right to that evidence.

Initially, the California courts were willing to recognize such a right. In People v. Reber, 177 Cal. App. 3d 523 (1986), the court held that two defendants accused of physically and sexually assaulting two developmentally disabled teens had a Sixth Amendment Confrontation Clause right to obtain, prior to trial, the victims' mental health records notwithstanding the state statutory privilege for psychotherapist-patient communications because those records might be used to cross-examine the victims. Id. at 528-32. The court relied on Davis. The court recognized that Davis dealt with the right at trial, but concluded that "[t]he distinction" between the right to confront at trial vis-à-vis "in the context of pretrial discovery" was a "distinction without a difference." Id. at 531. In light of the defendant's superior right to confrontation, the court ruled, a trial court is obligated to review the privileged records in camera and to disclose whatever portions that were "essential to the vindication of defendants' rights of confrontation." Id. at 532.

A year later, a four-justice plurality of the U.S. Supreme Court in Ritchie stated that "the Confrontation Clause only protects a defendant's trial rights, and does not compel the pretrial production of information that might be useful in preparing for trial." 480 U.S. at 53 n.9.

The California Supreme Court took its cue from Ritchie. In People v. Webb, 6 Cal. 4th 494 (1993), the court cited Ritchie and observed that it was "not clear whether or to what extent the confrontation or compulsory process clauses of the Sixth Amendment grant pretrial discovery rights to the accused." Id. at 517-18. Four years later, the court in People v. Hammon, 15 Cal. 4th 1117 (1997) adopted the Ritchie plurality's position as California law, overturned Reber and held that a "defendant's Sixth Amendment rights of confrontation and cross-examination" do not "authorize pretrial disclosure of privileged information." Id. at 1128. Since then, the court has consistently rebuffed confrontation-based requests for pretrial access to information privileged by state statutes, Webb (psychotherapist-patient privilege); Hammon (same); Alvarado v. Superior Court, 23 Cal. 4th 1121, 1135-36 (2000) (right to delay disclosure of witness's identity under Penal Code Section 1054.7), and by state constitutional law, Delaney (journalist's privilege).

Last year, the Court of Appeal in Facebook, 240 Cal. App. 4th 203 (2015), applied Hammon and its progeny in deciding whether to grant two criminal defendants pre-trial access to the Facebook, Twitter and Instagram accounts of their drive-by shooting victim and each other. Id. at 215-20. A federal statute, the Stored Communications Act, prohibits the disclosure of the content of a service subscriber's electronic communications without that subscriber's voluntary consent. 18 U.S.C. Section 2702. The absence of an overriding constitutional right of pretrial access meant that the defendants could not obtain this evidence until trial, when their Davis-based right to cross examine kicked in. Id.

Earlier this year, the California Supreme Court granted review in Facebook. Interestingly, the court specified that it would decide, among other things, whether "to limit or overrule" Hammon.

There are arguments to support and criticize Hammon's rule precluding pre-trial access to otherwise privileged evidence. On the support side, Hammon justified its rule on the ground that Reber's balancing of the necessity for disclosure was meaningless prior to trial because the issues had yet to crystallize; to undertake balancing prior to trial, the court reasoned, was to risk disclosing privileged material that later turned out not to be "essential" to vindicate the defendant's rights. Id. at 1127. Additionally, in cases where a privilege protects a witness's or victim's identity for safety reasons, postponing disclosure until trial also guards that safety. Alvarado at 1135-36. On the critical side, holding discovery off until trial has commenced might lead to disruption and delay during trial if the privileged information necessitates a continuance to allow for further investigation.

No matter which way the Supreme Court comes out, it will be assigning a "face value" to the defendant's right to obtain privileged information prior to trial. Whether the court ultimately holds that this right is enshrined in the federal Constitution - making it the proverbial "ace in the hole" - will dictate where that right falls in the hierarchy of competing rights used to resolve criminal discovery disputes.