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CO: Defense SDT for third-party's e-mails was a virtual search warrant and excessive

By John Wesley Hall, Jr.

A defense pretrial subpoena duces tecum to a third party amounted to a search warrant of a computer for e-mails, and it was an excessive use of the subpoena power. Limiting the defense power did not violate the right to put on a defense or compulsory production, either. The DA had standing to bring the issue. In re: People v. Spykstra, 2010 Colo. LEXIS 460 (June 21, 2010): Because the Nixon test addresses and prevents potential abuse of the rule as a broad discovery tool, we adopt a substantially similar standard, adding an initial element to make explicit what is otherwise inherent. Accordingly, when a criminal pretrial third-party subpoena is challenged, a defendant must demonstrate: (1) A reasonable likelihood that the subpoenaed materials exist, by setting forth a specific factual basis; (2) That the materials are evidentiary and relevant; (3) That the materials are not otherwise procurable reasonably in advance of trial by the exercise of due diligence; (4) That the party cannot properly prepare for trial without such production and inspection in advance of trial and that the failure to obtain such inspection may tend unreasonably to delay the trial; and (5) That the application is made in good faith and is not intended as a general fishing expedition...continue to full post

Full post as published by Fourth Amendment on June 23, 2010 (boomark / email).