Petition of State of New Hampshire
Annotate this CaseDefendant was charged with aggravated felonious sexual assault. Before trial, he filed a motion asking the trial court to order, among other things, “the State to take whatever steps are necessary to preserve all cell phone activity of [complainant] including voice mails, text messaging, e-mails, social media postings and photographs by making a mirror image of all cell phones utilized by [complainant].” Defendant also requested that the court order the State to “mak[e] immediate preservation and production requests of all service providers including, but not limited to cell phone[] carriers, Facebook and any other social media or communication provider with which [the complainant] had an account.” The State objected, arguing, among other things, that “[d]efendants generally do not have the legal authority to direct an investigation or demand that the State investigate, obtain, and preserve specific evidence.” Defendant responded in his motion that he was “not seeking discovery . . . but rather the preservation of” the records and communications. At the time the defendant filed his motion, the State did not possess any of the records or communications that defendant was seeking. The trial court granted defendant's proposed order, which compelled the State to obtain and produce the records for in camera inspection. The State appealed when its motion for reconsideration was denied. The Supreme Court reversed, finding that there were other procedural means through which defendant could obtain the records, and that the trial court did not have authority to grant the motion to compel them as it did.
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